71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 446
Sponsored by Senator COURTNEY; Senators L BEYER, HANNON,
Representatives GARDNER, PATRIDGE (at the request of Oregon
Association of Realtors)
CHAPTER ................
AN ACT
Relating to licensing by the Real Estate Commissioner; creating
new provisions; amending ORS 9.166, 59.720, 93.265, 94.977,
105.465, 105.480, 279.712, 305.230, 309.100, 316.209, 426.508,
443.738, 646.382, 656.037, 657.085, 659.430, 674.100, 696.010,
696.030, 696.110, 696.130, 696.174, 696.200, 696.205, 696.221,
696.226, 696.232, 696.235, 696.241, 696.243, 696.245, 696.265,
696.270, 696.280, 696.290, 696.301, 696.310, 696.320, 696.361,
696.365, 696.375, 696.430, 696.445, 696.511, 696.520, 696.525,
696.535, 696.541, 696.555, 696.582, 696.600, 696.603, 696.609,
696.621, 696.710, 696.730, 696.800, 696.805, 696.810, 696.815,
696.820, 696.845, 696.855, 696.870, 696.880, 696.990, 702.005
and 709.030; and repealing ORS 696.025, 696.050, 696.060,
696.080, 696.085, 696.100, 696.120, 696.141, 696.150, 696.160,
696.165, 696.169, 696.176, 696.180, 696.210, 696.224, 696.228,
696.258, 696.355, 696.359, 696.435, 696.825 and 696.830.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) A person who, on the effective date of this
2001 Act, holds or is qualified to hold a real estate broker's
license described in ORS 696.025 (1) (1999 Edition) shall receive
a license under section 9 of this 2001 Act. At the person's
option and request, the person may receive either a real estate
broker's license or a principal real estate broker's license.
(2) A person who, on the effective date of this 2001 Act, holds
or is qualified to hold a designated real estate broker's license
described in ORS 696.025 (3) (1999 Edition) shall receive a
license under section 9 of this 2001 Act. At the person's option
and request, the person may receive either a real estate broker's
license or a principal real estate broker's license.
(3) A person who, on the effective date of this 2001 Act, holds
or is qualified to hold an associate real estate broker's license
described in ORS 696.025 (4) (1999 Edition) shall receive a
license under section 9 of this 2001 Act. At the person's option
and request, the person may receive either a real estate broker's
license or a principal real estate broker's license. + }
SECTION 2. { + (1) Except as provided in subsection (4) of
this section, a person who, on the effective date of this 2001
Act, holds or is qualified to hold a real estate salesperson's
license described in ORS 696.025 (6) (1999 Edition) may lawfully
engage in all of the professional real estate activities of a
Enrolled Senate Bill 446 (SB 446-A) Page 1
real estate broker associated with a principal real estate broker
under section 9 of this 2001 Act.
(2) If a person who holds a real estate salesperson's license
on the effective date of this 2001 Act successfully completes
courses in contract law, trust accounting, property management
and real estate closings, the Real Estate Commissioner shall
issue a real estate broker's license under section 9 of this 2001
Act to the person. The courses are subject to approval by the
commissioner. The courses must be completed within three years
after the effective date of this 2001 Act.
(3) If a person who holds a real estate salesperson's license
fails to demonstrate successful completion of the required
courses prior to the expiration of the period prescribed by the
Real Estate Agency by rule, the real estate salesperson's license
shall be canceled and a real estate broker's license may not be
issued. Thereafter, the person may not engage in professional
real estate activity unless a license is issued subsequently to
the person under section 9 of this 2001 Act.
(4) A person who holds a valid real estate salesperson's
license may engage in all of the professional real estate
activities of a real estate broker only if the person is
associated with a principal real estate broker. A real estate
salesperson may engage in professional real estate activities as
a sole practitioner only if the person is licensed as a real
estate broker or principal real estate broker under section 9 of
this 2001 Act.
(5) A person who, on the effective date of this 2001 Act, holds
or is qualified to hold a real estate salesperson's license
described in ORS 696.025 (6) (1999 Edition) shall be designated a
temporary associate broker. + }
SECTION 3. { + (1) A person who, on the effective date of this
2001 Act, holds or is qualified to hold a real estate property
manager's license described in ORS 696.025 (5) (1999 Edition)
shall receive a temporary real estate property manager's license.
A person who holds a valid temporary real estate property
manager's license may lawfully engage in all of the professional
property management activities of a person licensed as a real
estate property manager under section 9 of this 2001 Act.
(2) If a person who holds a temporary real estate property
manager's license successfully completes courses in trust
accounting, record keeping and basic accounting, the Real Estate
Commissioner shall issue to the person a real estate property
manager's license under section 9 of this 2001 Act. The courses
are subject to approval by the commissioner. The courses must be
completed within a period prescribed by the Real Estate Agency by
rule, but the period may not expire less than one year from the
effective date of this 2001 Act.
(3) If a person who holds a temporary real estate property
manager's license fails to demonstrate successful completion of
the required courses prior to the expiration of the period
prescribed by the agency, the temporary real estate property
manager's license shall be canceled and a real estate property
manager's license may not be issued. Thereafter, the person may
not engage in professional real estate property management
activity unless a real estate property manager's license is
issued subsequently under section 9 of this 2001 Act. + }
SECTION 4. { + A person described in section 1, 2 or 3 of this
2001 Act may request that the person's real estate license be
issued on an inactive status. A license on inactive status does
not permit the holder to engage in the professional real estate
Enrolled Senate Bill 446 (SB 446-A) Page 2
activity for which the holder is qualified. Inactive status under
this section does not affect the time limits or educational
requirements described in sections 2, 3 and 9 of this 2001
Act. + }
SECTION 5. { + Sections 1 to 4 of this 2001 Act are repealed
on January 1, 2005. + }
SECTION 6. { + Sections 8, 9 and 15 of this 2001 Act are added
to and made a part of the Oregon Real Estate License Law. + }
SECTION 7. { + (1) Upon the issuance by the Real Estate
Commissioner of the licenses as provided in sections 1, 2, 3 and
4 of this 2001 Act, every outstanding real estate broker's
license, designated real estate broker's license, associate real
estate broker's license, real estate salesperson's license and
real estate property manager's license issued under ORS 696.025
(1999 Edition) is void.
(2) The term of a license issued under section 1, 2 or 3 of
this 2001 Act does not extend beyond the term of the license
being converted.
(3) All branch office licenses issued under ORS 696.200 (1999
Edition) are void.
(4) All real estate organization licenses issued under ORS
696.025 (2) and 696.080 (both 1999 Edition) are void. + }
SECTION 8. { + (1) A real estate broker or principal real
estate broker may conduct business under the broker's name or may
register a business name with the Real Estate Agency. Registering
a business name allows the real estate broker or principal real
estate broker to conduct professional real estate activity in the
registered business name. The registered business name has no
license standing independent of the broker registering the
business.
(2) The agency by rule shall adopt a registration system for
business names. The system shall allow the registration of any
branch office of either a real estate broker or a principal real
estate broker acting as a sole practitioner.
(3) A real estate broker or principal real estate broker
operating under a business name registered by the broker need not
be an owner or officer of any organization otherwise lawfully
entitled to use the registered business name or have an ownership
interest in the registered name. However, all professional real
estate activity conducted by or on behalf of the broker must be
conducted under the business name registered by the broker.
(4) A real estate broker or principal real estate broker may
register two or more business names if the business names are for
affiliated or subsidiary business organizations. If a real estate
broker or principal real estate broker registers the business
names for two or more affiliated or subsidiary business
organizations, the broker may conduct professional real estate
activity separately under each business name. A real estate
broker or principal real estate broker must supervise and control
the professional real estate activity conducted under the
broker's name or registered business name.
(5) A real estate broker employed, engaged or supervised by a
principal real estate broker for required training and
supervision by the principal real estate broker may have an
ownership interest in any business through which the principal
broker conducts professional real estate activity, but may not
control or supervise the professional real estate activity of the
principal broker and may not interfere with or be responsible for
the training and supervision of any other broker.
Enrolled Senate Bill 446 (SB 446-A) Page 3
(6) A nonlicensed person may have an ownership interest in any
business through which a real estate broker or principal real
estate broker engages in professional real estate activity, but
may not control or supervise the professional real estate
activity of any real estate broker or principal real estate
broker licensed to control or supervise the professional real
estate activity of such business.
(7) A real estate business in which two or more real estate
brokers engage in professional real estate activity may not have
two or more principal real estate brokers who are jointly
responsible for the supervision and control of the professional
real estate activity conducted through the business, unless the
principal brokers enter into a written agreement and have written
office policies dividing control and supervision
responsibilities.
(8) Two or more principal real estate brokers operating under
the same registered business name who have engaged one or more
real estate brokers for training or supervision or who have
supervisory control over other principal real estate brokers may
not be jointly responsible for the supervision and control of the
real estate brokers engaged by them or the other principal real
estate brokers under their supervision unless the principal
brokers enter into a written agreement and have written office
policies dividing control and supervision responsibilities.
(9) Two or more principal real estate brokers operating under
the same registered business name who have engaged one or more
real estate brokers to provide administrative or managerial
services may not be jointly responsible for supervision and
control of the real estate brokers providing administrative or
managerial services unless the principal brokers enter into a
written agreement and have written office policies dividing the
responsibilities for control and supervision.
(10) Two or more real estate brokers operating under the same
registered business name who do not exercise any administrative
or supervisory control over one another are solely responsible
for their own professional real estate activity. + }
SECTION 9. { + (1) The Real Estate Agency shall establish by
rule a system for licensing real estate brokers, principal real
estate brokers and real estate property managers. The system
shall establish, at a minimum:
(a) The form and content of applications for licensing under
each category of real estate professional licensed by the agency;
(b) A licensing examination for each category of license;
(c) Schedules and procedures for issuing and renewing licenses;
and
(d) The term of a license in each category.
(2)(a) A real estate broker may engage in all of the
professional activities of a real estate broker described in this
chapter. A real estate broker may conduct professional real
estate activities as a sole practitioner or in conjunction with
other real estate brokers or principal real estate brokers after
the person has acquired three years of active experience as a
real estate broker. A real estate broker may not employ, engage
or otherwise supervise the professional activities of another
real estate broker or principal real estate broker.
(b) In order to qualify for a real estate broker's license, an
applicant must furnish proof satisfactory to the Real Estate
Commissioner that the applicant has successfully completed the
basic real estate broker's educational courses and the
examination required by rule of the agency. Proof of completion
Enrolled Senate Bill 446 (SB 446-A) Page 4
of all required courses must be provided at the time of applying
for the license.
(3)(a) A principal real estate broker may engage in all of the
professional activities of a real estate broker described in this
chapter. A principal real estate broker may conduct professional
real estate activities as a sole practitioner or in conjunction
with other real estate brokers or principal real estate brokers.
In addition, a principal real estate broker may employ, engage
and otherwise supervise the professional activities of real
estate brokers or principal real estate brokers.
(b) In order to qualify for a principal real estate broker's
license, an applicant must meet the requirements of subsection
(2)(b) of this section and must furnish proof satisfactory to the
commissioner that the applicant has successfully completed
courses in brokerage administration and sales supervision, as
required by agency rule, and has three years of active experience
as a licensed real estate broker.
(4) In order to qualify for a real estate property manager's
license, an applicant must furnish proof satisfactory to the
commissioner that the applicant has successfully completed
courses in the legal aspects of real estate, real estate property
management and accounting, bookkeeping and trust accounting
practices. The applicant also must have successfully completed a
real estate property manager's license examination prescribed by
rule of the agency. Proof of completion of all required courses
must be provided at the time of applying for the license.
(5)(a) A license for a real estate broker, principal real
estate broker or real estate property manager shall be granted
only to a person who is trustworthy and competent to conduct
professional real estate activity in a manner that protects the
public interest. As a condition of licensing, the commissioner
may require such proof of competence and trustworthiness as the
commissioner deems necessary.
(b) In implementing this subsection, the commissioner may
require fingerprints and criminal offender information of an
applicant for initial licensing or license renewal. Fingerprints
acquired under this subsection may be submitted to appropriate
law enforcement agencies to determine any previous unlawful
activity of the applicant.
(6) A license may be issued under this section only to persons
who are 18 years of age or older.
(7) In order to qualify for a real estate broker's license, a
real estate salesperson licensed in another state or country must
successfully complete a course of study and pass a real estate
broker's license examination, both as prescribed by agency rule.
(8) In order to satisfy the educational requirements under
subsections (2) to (4) and (7) of this section, a course must be
approved by the commissioner. The commissioner shall determine
the final examination score acceptable as evidence of successful
completion for each required course.
(9) The Real Estate Board may determine that an applicant for a
principal real estate broker's license has real estate related
experience that is equivalent to the experience required under
subsection (3) of this section. + }
SECTION 10. ORS 696.010 is amended to read:
696.010. As used in ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 { + , 696.990 + } and 696.995, unless the
context requires otherwise:
{ - (1) 'Advance fee' means a fee received before the
professional real estate activity involved is completed. The term
Enrolled Senate Bill 446 (SB 446-A) Page 5
' advance fee' shall not include a retainer fee paid to a real
estate broker or organization to secure the availability of such
broker or organization for future professional real estate
activity, or a consulting fee paid to a real estate licensee
engaged to provide consultation or advice concerning the
valuation, marketability or acquisition potential of real
estate. - }
{ - (2) - } { + (1) + } 'Agency' means the Real Estate
Agency.
{ + (2) 'Associated with' means to be employed, engaged or
otherwise supervised by, with respect to the relationship between
a real estate broker and a principal real estate broker. + }
(3) 'Bank' includes any bank or trust company, savings bank,
mutual savings bank, savings and loan association or credit union
that maintains a head office or a branch in this state in the
capacity of a bank or trust company, savings bank, mutual savings
bank, savings and loan association or credit union.
(4) 'Board' means the Real Estate Board.
(5)(a) 'Branch office' means a business location other than the
main office designated under ORS 696.200 (1), where professional
real estate activity is regularly conducted or which is
advertised to the public as a place where such business may be
regularly conducted.
(b) Model units or temporary structures used solely for the
dissemination of information and distribution of lawfully
required public reports shall not be considered branch offices. A
model unit means a permanent residential structure located in a
subdivision or development used for such distribution and
dissemination, so long as the unit is at all times available for
sale, lease, lease option or exchange.
(6) 'Commissioner' means the Real Estate Commissioner.
(7) 'Compensation' means any fee, commission, salary, money or
valuable consideration for services rendered or to be rendered as
well as the promise thereof and whether contingent or otherwise.
(8) 'Competitive market analysis' means a method or process
used by a real estate licensee in pursuing a listing agreement or
in formulating an offer to acquire real estate in a transaction
for the sale, lease, lease-option or exchange of real estate. The
objective of competitive market analysis is a recommended
listing, selling or purchase price or a lease or rental
consideration. A competitive market analysis may be expressed as
an opinion of the value of the real estate in a contemplated
transaction. Competitive market analysis may include but is not
limited to an analysis of market conditions, public records, past
transactions and current listings of real estate.
{ - (9) 'Controlling shareholder' means: - }
{ - (a) Any individual who owns or controls, directly or
indirectly, a majority of the outstanding shares of a corporate
real estate organization. - }
{ - (b) Any real estate salesperson who owns shares of stock
of a corporate real estate organization, the majority of shares
of which are owned or controlled, directly or indirectly, by real
estate salespersons. - }
{ - (10) - } { + (9) + } 'Inactive license' means a license
which has been returned to the commissioner and is being held by
the commissioner on an inactive status.
{ - (11) - } { + (10) + } 'Letter opinion' means a document
that expresses a real estate licensee's conclusion regarding a
recommended listing, selling or purchase price or a rental or
lease consideration of certain real estate and that results from
Enrolled Senate Bill 446 (SB 446-A) Page 6
the licensee's competitive market analysis. The commissioner by
rule shall specify the minimum contents of a letter opinion,
including but not limited to the distinction between a letter
opinion and a real estate appraisal.
{ + (11)(a) 'Management of rental real estate' means
representing the owner of real estate in the rental or lease of
the real estate and includes but is not limited to:
(A) Advertising the real estate for rent or lease;
(B) Procuring prospective tenants to rent or lease the real
estate;
(C) Negotiating with prospective tenants;
(D) Accepting deposits from prospective tenants;
(E) Checking the qualifications and creditworthiness of
prospective tenants;
(F) Charging and collecting rent or lease payments;
(G) Representing the owner in inspection or repair of the real
estate;
(H) Contracting for repair or remodeling of the real estate;
(I) Holding trust funds or property received in managing the
real estate and accounting to the owner for the funds or
property;
(J) Advising the owner regarding renting or leasing the real
estate;
(K) Consulting with prospective buyers regarding purchase of
the real estate;
(L) Providing staff and services to accommodate the tax
reporting and other financial or accounting needs of the real
estate;
(M) Providing copies of records of acts performed on behalf of
the owner of the real estate; and
(N) Offering or attempting to do any of the acts described in
this paragraph for the owner of the real estate.
(b) 'Management of rental real estate' also means representing
a tenant or prospective tenant when renting or leasing real
estate and includes but is not limited to:
(A) Consulting with tenants or prospective tenants about
renting or leasing real estate;
(B) Assisting prospective tenants in renting or leasing real
estate;
(C) Assisting prospective tenants in qualifying for renting or
leasing real estate;
(D) Accepting deposits or other funds from prospective tenants
for renting or leasing real estate and holding the funds in trust
for the prospective tenants;
(E) Representing tenants or prospective tenants renting or
leasing real estate; and
(F) Offering or attempting to do any of the acts described in
this paragraph for a tenant or prospective tenant.
(12) 'Principal real estate broker' means a real estate broker
who is qualified to employ, engage or otherwise supervise other
real estate brokers and who is licensed as a principal real
estate broker. + }
{ - (12) - } { + (13) + } 'Professional real estate
activity' means any of the following actions, when engaged in for
another and for compensation or with the intention or in the
expectation or upon the promise of receiving or collecting
compensation, by any person who:
(a) Sells, exchanges, purchases, rents or leases real estate.
(b) Offers to sell, exchange, purchase, rent or lease real
estate.
Enrolled Senate Bill 446 (SB 446-A) Page 7
(c) Negotiates, offers, attempts or agrees to negotiate the
sale, exchange, purchase, rental or leasing of real estate.
(d) Lists, offers, attempts or agrees to list real estate for
sale.
(e) Offers, attempts or agrees to perform or provide a
competitive market analysis or letter opinion, to represent a
taxpayer under ORS 305.230 or 309.100 or to give an opinion in
any administrative or judicial proceeding regarding the value of
real estate for taxation. Such activity performed by a state
certified appraiser or state licensed appraiser is not
professional real estate activity.
(f) Auctions, offers, attempts or agrees to auction real
estate.
(g) Buys, sells, offers to buy or sell or otherwise deals in
options on real estate.
(h) Engages in { - property management as described in ORS
696.025 (5) or collects, offers, attempts or agrees to collect
rental for the use of real estate - } { + management of rental
real estate + }.
(i) Purports to be engaged in the business of buying, selling,
exchanging, renting or leasing real estate.
(j) Assists or directs in the procuring of prospects,
calculated to result in the sale, exchange, leasing or rental of
real estate.
(k) Assists or directs in the negotiation or closing of any
transaction calculated or intended to result in the sale,
exchange, leasing or rental of real estate.
{ - (L) Engages in the business of charging an advance
fee. - }
{ - (m) - } { + (L) + } Except as otherwise provided in ORS
696.030 (1)(k), advises, counsels, consults or analyzes in
connection with real estate values, sales or dispositions,
including dispositions through eminent domain procedures.
{ - (n) - } { + (m) + } Advises, counsels, consults or
analyzes in connection with the acquisition or sale of real
estate by an entity if the purpose of the entity is investment in
real estate.
{ - (o) - } { + (n) + } Performs real estate marketing
activity as described in ORS 696.600.
{ - (13) - } { + (14) + } 'Real estate' includes leaseholds
and licenses to use including, but not limited to, timeshare
estates and timeshare licenses as defined in ORS 94.803, as well
as any and every interest or estate in real property, whether
corporeal or incorporeal, whether freehold or nonfreehold,
whether held separately or in common with others and whether the
real property is situated in this state or elsewhere.
{ + (15) 'Real estate broker' means a person who engages in
professional real estate activity and who is licensed as a real
estate broker. + }
{ - (14) - } { + (16) + } 'Real estate licensee' means a
{ + real estate broker, principal real estate broker or real
estate property manager. + } { - person licensed by the
commissioner in one of the following categories: - }
{ - (a) 'Real estate broker' as described in ORS 696.025
(1). - }
{ - (b) 'Real estate organization' as described in ORS
696.025 (2). - }
{ - (c) 'Designated real estate broker' as described in ORS
696.025 (3). - }
Enrolled Senate Bill 446 (SB 446-A) Page 8
{ - (d) 'Associate real estate broker' as described in ORS
696.025 (4). - }
{ - (e) 'Real estate property manager' as described in ORS
696.025 (5). - }
{ - (f) 'Real estate salesperson' as described in ORS 696.025
(6). - }
{ + (17) 'Real estate property manager' means a real estate
licensee who is authorized to engage in management of rental real
estate.
(18) 'Registered business name' means a name registered with
the Real Estate Agency under which the person registering the
name engages in professional real estate activity. + }
SECTION 11. ORS 696.030 is amended to read:
696.030. (1) ORS 696.010 to 696.375, 696.392, 696.395 to
696.435, 696.490, 696.600 to 696.730, 696.990 and 696.995 do not
apply to, and the term 'real estate licensee' does not include:
(a) A nonlicensed regular full-time employee of a single owner
of real estate whose activities involve the real estate of the
employer and are incidental to the employee's normal, nonreal
estate activities; or a nonlicensed regular full-time employee
whose activity involving such real estate is the employee's
principal activity, but the employer's principal activity or
business is not the sale, exchange, lease option or acquisition
of real estate.
(b) Any nonlicensed person acting as attorney in fact under a
duly executed power of attorney from the owner { + or
purchaser + } authorizing the supervision of the closing of or
supervision of the performance of any contract for the sale,
leasing or exchanging of real estate { - , - } if { + :
(A) + } The power of attorney is recorded in the office of the
recording officer for the county in which the property to be
sold, leased or exchanged is located { + ;
(B) The power of attorney specifically describes the real
estate to be sold, leased or exchanged; and
(C) The person does not use the power of attorney to engage in
professional real estate activity + }.
(c) Any attorney at law rendering services in the performance
of duties as an attorney at law.
(d) While acting as such, any receiver, trustee in bankruptcy,
personal representative; or any trustee or the regular salaried
employees thereof, acting under a trust agreement, deed of trust
or will.
(e) Any person doing any of the acts of professional real
estate activity under order of any court.
(f) A nonlicensed regular full-time employee employed by and
acting for a single nonlicensed corporation, partnership,
association or individual owner in the rental or management, but
not sale, exchange, lease option or purchase of the real property
of the employer.
(g) Any registered professional engineer or architect rendering
services in performance of duties as a professional engineer or
architect.
(h) A nonlicensed individual employed by a real estate broker
or { - a real estate organization - } { + principal real
estate broker + } and acting as a manager for any real estate
whose activities are limited to negotiating rental or lease
agreements, the checking of tenant and credit references, the
physical maintenance of the real estate, tenant relations and the
collection of rent, and the supervision of premises' managers.
Enrolled Senate Bill 446 (SB 446-A) Page 9
(i) Any person, partnership, association or corporation or any
employee of any such person while engaging in the disposition of
human bodies under the provisions of ORS 97.010 to 97.040, 97.110
to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990, and
engaged in the sale or leasing of cemetery lots, parcels or units
in Oregon.
(j) Any salaried employee of the State of Oregon, or any of its
political subdivisions, while engaged in professional real estate
activity as a part of such employment.
(k) Any nonlicensed person, organization, or any regular
full-time employee thereof, as to the activities of the person,
organization, or employee in analyzing or advising of permissible
land use alternatives, environmental impact, building and use
permit procedures, or demographic market studies. This exclusion
does not apply to the handling of transactional negotiations for
transfer of an interest in real estate.
(L) Any hotelkeeper or innkeeper as defined by ORS 699.005
while in the course of business as a hotelkeeper or innkeeper.
(m) Any travel agent { - while in the course of business as a
travel agent in arranging for compensation - } { + who, in the
course of business as a travel agent for compensation,
arranges + } the rental of transient lodging at a hotel or inn as
defined in ORS 699.005. For the purpose of this paragraph,
'travel agent' means a person, including employees thereof,
regularly engaged in the business of representing and selling
travel services to the public either directly or indirectly
through other travel agents, or both.
(n) Any common carrier while in the course of business as a
common carrier in arranging for compensation the rental of
transient lodging at a hotel or inn as defined in ORS 699.005.
For the purpose of this paragraph, 'common carrier' means a
person who transports, or purports to be willing to transport
persons, for hire, compensation or consideration by rail, motor
vehicle, boat or aircraft from place to place.
(o) Any hotel representative while in the course of business as
a hotel representative in arranging for compensation the rental
of transient lodging at a hotel or inn as defined in ORS 699.005.
For the purpose of this paragraph, 'hotel representative' means a
person who provides reservations or sale services to independent
hotels, airlines, steamship companies and government tourist
agencies.
(p) A nonlicensed person transferring or acquiring any interest
in real estate owned or to be owned by the person.
(q) Any general partner for a domestic or foreign limited
partnership duly registered and operating within this state under
ORS chapter 70 while engaging in the sale of limited partnership
interests and while engaging in the acquisition, sale, exchange,
lease, transfer or management of the real estate of the limited
partnership.
(r) A membership camping contract broker or salesperson
registered with the Real Estate Agency when engaged in the sale
of membership camping contracts.
(s) Any professional forester or farm manager who engages in
property management activities on forest or farm land when such
activities are incidental to the nonreal estate duties involving
overall management of forest or farm resources.
(t) Any registered investment adviser under the Investment
Advisers Act of 1940, 15 U.S.C. s80b-1 et seq., when rendering
real estate investment services for the office of the State
Treasurer or the Oregon Investment Council.
Enrolled Senate Bill 446 (SB 446-A) Page 10
(u) Any nonlicensed person who, for compensation, refers a new
tenant to a real estate licensee acting as the property manager
for the person's residential building or facility while the
person resides in the building or facility or within six months
after termination of the person's tenancy.
(v) Any nonlicensed person who gives an opinion in an
administrative or judicial proceeding regarding the value of real
estate for taxation, or who represents a taxpayer under ORS
305.230 or 309.100.
(2) The vesting of title to real estate in more than one person
by tenancy by the entirety, tenancy in common or by survivorship
shall be construed as that of a single owner for the purposes of
this section.
SECTION 12. ORS 696.110 is amended to read:
696.110. { - (1) Every application for a license and any
examination under ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 and 696.995 shall be accompanied by the
examination fee prescribed in ORS 696.270. The fee for all
licenses issued shall, at all periods of the year, be the same as
prescribed in ORS 696.270. - }
{ - (2) - } The provisions of ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995 shall be
exclusive and no political subdivision or agency of this state
shall require or issue any license or charge any fee for
licensing or regulation of persons { - duly - } licensed under
{ - ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to
696.855 and 696.995 - } { + section 9 of this 2001 Act + }.
Nothing in this { - subsection - } { + section + } shall
limit the authority of a county, city or town to levy and collect
a general and nondiscriminatory license fee upon all businesses
in the county, city or town or to levy a tax based upon the
business conducted by any licensee or firm within the county,
city or town.
SECTION 13. ORS 696.130 is amended to read:
696.130. { - (1) All applicants for a real estate license,
other than for a real estate property manager's license or an
unrestricted real estate broker's license shall be required to
pass a basic written real estate examination to be conducted by
the Real Estate Board. The examination shall include arithmetic
and computation related to real estate, property descriptions,
contracts and conveyances, real estate sales practices and
instruments, problems generally encountered in real estate,
appraising, real estate taxation and a general knowledge of the
provisions of this chapter. - }
{ - (2) The examination for an unrestricted real estate
broker's license shall be on problems and matters affecting and
involving a real estate broker including, but not limited to,
business law, escrows, real estate office administration,
property management, appraisals, real estate contracts, deposit
receipts, earnest money receipts, deeds, mortgages, deeds of
trust, leases, principles of business, land economics, real
estate finance and Oregon laws relating to real estate. - }
{ - (3) The examination for a real estate property manager's
license shall be on problems and matters relating to the rental
and management of real estate, as prescribed by the Real Estate
Commissioner by rule. - }
{ - (4) The board shall hold licensing examinations at such
times and places as it may determine, except that the board shall
hold the examinations no less frequently than every 120 days and
Enrolled Senate Bill 446 (SB 446-A) Page 11
shall hold not less than four examinations in each calendar
year. - }
{ - (5) The successful passing of an examination prescribed
by the commissioner to demonstrate competence in the areas of
legal aspects of real estate, real estate practice and real
estate finance may be accepted by the board in lieu of the
examination required by subsection (1) of this section for a
salesperson's license provided that the prescribed examinations
are all successfully passed within the period of two years. - }
{ - (6) - } { + (1) + } If the license of any real estate
broker or
{ - salesperson - } { + principal real estate broker + } is
revoked by the { + Real Estate + } Commissioner, { - no - }
{ + a + } new license shall { + not + } be issued until the
person complies with the provisions of ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995 unless
{ - at the time the order - } { + the commissioner + }
authorizes the issuance of a limited license { - or if a
broker's license is revoked, the order authorizes the issuance of
a salesperson's license - } .
{ - (7) - } { + (2) + } { - The - } { + A + } limited
license issued under subsection
{ - (6) - } { + (1) + } of this section as the commissioner
in the commissioner's discretion finds advisable in the public
interest may be limited:
(a) By term;
(b) To { - serve as the agent of a particular real estate
broker, if a salesperson - } { + acts subject to the
supervision of a specific principal real estate broker + }; or
(c) By conditions to be observed in the exercise and the
privileges granted.
{ - (8) - } { + (3) + } A limited license issued under
{ - subsections (6) and (7) of - } this section does not confer
any property right in the privileges to be exercised thereunder,
and the holder of a limited license does not have the right to
renewal of such license. A limited license may be suspended or
revoked, or the licensee may be reprimanded, by the commissioner
on the grounds set out in ORS 696.301.
SECTION 14. ORS 696.174 is amended to read:
696.174. { - (1) Each license as a real estate broker, real
estate property manager or real estate salesperson may be renewed
by the Real Estate Commissioner upon the payment by the licensee
of the registration or renewal fee specified in ORS 696.270, with
a complete renewal application and evidence of completion of
educational requirements as provided in subsections (4) and (5)
of this section. The completed application, fee, and evidence of
educational requirements shall be delivered to the commissioner
on or before the expiration date of the license. - }
{ - (2) If the licensee fails to renew the license in the
manner set forth in subsection (1) of this section on or before
the expiration date of the license, the commissioner may accept a
late payment, subject to such conditions as the commissioner may
require. However, during the period beginning on the day
following the expiration date of the license and ending on the
date of renewal of the license the rights of the licensee under
such license and the rights of each associate broker and
salesperson engaged by the licensee shall be suspended, and
during such suspension it is unlawful for any of such licensees
to do or attempt or offer to engage in any professional real
estate activity. - }
Enrolled Senate Bill 446 (SB 446-A) Page 12
{ - (3) The license of an associate broker or salesperson
suspended as provided for in subsection (2) of this section may
be reissued to the same broker or a new broker if requested
within 30 days after expiration of the broker's license and upon
payment of a transfer fee and on receipt of the associate
broker's or salesperson's original license. - }
{ - (4) - } { + (1) + } To qualify an active license for
renewal, the real estate licensee must present evidence of
attendance during the preceding two license years { - of - }
{ + at + } 30 clock-hours of real estate oriented
{ - educational sessions - } { + continuing education
courses + }, of which a minimum of 15 clock-hours shall be in
required course topics.
{ - (5)(a) - } { + (2)(a) + } The { + Real Estate + }
Commissioner, with advice from real estate professionals { + ,
educators + } and the public, may accept a broad range of topics
for real estate oriented
{ - educational sessions - } { + continuing education
courses + }. Required course topics shall be flexible so as to
allow for changes in the real estate profession.
(b) The minimum length of each course, required or elective,
shall be one hour. A standard form, created by the Real Estate
Agency in consultation with real estate professionals, shall be
developed to ensure that licensees have completed the required
number of hours. Certification of attendance by the { +
principal real estate + } broker with whom the { - licensee - }
{ + real estate broker + } is
{ - licensed - } { + associated, + } or self-certification if
the licensee is a
{ - broker - } { + sole practitioner, a principal real estate
broker + } or { + a + } real estate property manager { + , + }
shall be considered evidence of attendance.
{ + (3) The commissioner, with advice from real estate
professionals, educators and the public, shall prescribe rules
for certifying continuing education courses. The rules shall
provide for correspondence courses and other distance learning
alternatives, including but not limited to rules for minimum
course length, comprehension of written materials and tests for
course completion. The rules shall also provide that continuing
education course topics contain an advanced course in real estate
practices that must be completed by a licensee prior to the
licensee's first renewal of an active license. + }
{ - (6) - } { + (4) + } The commissioner may waive the
continuing education requirements of subsection { - (4) or
(5) - } { + (1) + } of this section for any licensee who
submits satisfactory evidence of inability to attend such
{ - sessions - } { + courses + } because of health or other
circumstances beyond the licensee's control.
SECTION 15. { + To qualify for a real estate license under
section 9 of this 2001 Act or to renew an active or inactive real
estate license, the applicant must make full payment of any
unpaid moneys due and owing to the Real Estate Agency, including
any unpaid civil penalties assessed under a final order of the
Real Estate Commissioner. + }
SECTION 16. ORS 696.200 is amended to read:
696.200. (1) Except for { - associate - } { + real
estate + } brokers
{ - licensed pursuant to ORS 696.165 - } { + associated with
a principal real estate broker + }, every real estate broker and
{ - real estate organization - } { + principal real estate
Enrolled Senate Bill 446 (SB 446-A) Page 13
broker + } shall maintain in this state a place of business to be
designated as the broker's { - or organization's - } main
office and designate such place of business by a sign which shall
contain the name under which such broker is licensed.
(2) The place of business shall be specified in the application
for { + a real estate + } license, and designated in the
license. { - No license issued under ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995 authorizes the
licensee to transact business from any office other than that
designated in the license, unless notice in writing is given to
the Real Estate Commissioner prior to any such change of business
location, designating the new location of such office, at which
time the broker shall send in the broker's license and the
licenses of the licensee agents with the fee required by ORS
696.270 for each new license. The commissioner forthwith shall
issue a new license for the new location for the unexpired
period. - } { + Prior to the change of a business location, the
broker shall notify the Real Estate Commissioner in writing of
the new location. + } The change of a business location without
notification to the commissioner is grounds for revocation of
licenses previously issued.
(3) { - If a broker desires to establish one or more branch
offices, the broker shall notify the commissioner, giving the
location thereof, and pay the fee required by ORS 696.270 for
each branch office to be established, whereupon the commissioner
may issue a license therefor. The branch office license shall be
issued in the same name that the main office license is issued,
and the license must be posted in the branch office. Branch
office signs shall conform with the provisions of subsection (1)
of this section and the designation 'Branch Office' shall be
included. Each office, whether main or branch, shall be under
the management of a licensee in the broker category as specified
in ORS 696.025 who shall conduct and supervise the business of
the office. - } { + A real estate broker or principal real
estate broker may establish one or more branch offices as
separate business locations under the management of the
broker. + } A broker may conduct and supervise the business of
more than one office, whether main or branch. { + The broker
must register each branch office with the commissioner. + }
{ - The license of an associate real estate broker managing an
office shall state that the broker is associated with or the
agent of, as the case may be, the broker licensed to establish
the office. Salespersons who were authorized to and were
managing a 'Branch Office' for a broker on October 5, 1973, may
continue such management. - }
(4) Upon removal from any location it shall be a broker's duty
to see that the broker's name or the name under which the broker
has operated is removed from the location which the broker has
vacated. A broker shall not display any name as such at the
designated places of business named in the broker's license or
licenses other than the name under which the broker is licensed.
SECTION 17. ORS 696.205 is amended to read:
696.205. In the event of the death { + or incapacity + }of a
licensed broker who is { - the - } { + a + } sole
{ - proprietor - } { + practitioner or the sole principal real
estate broker + } of a real estate business, the Real Estate
Commissioner may issue a temporary license to the executor,
administrator or personal representative of the estate of the
deceased broker, { + to the court-appointed fiduciary of the
incapacitated broker, + }or to some other person designated by
Enrolled Senate Bill 446 (SB 446-A) Page 14
the commissioner, to continue to transact said business { + in
the case of an incapacitated broker or + } for the { - sole - }
purpose of winding up the affairs of the deceased { + or
incapacitated + } broker. Unless the commissioner, in the
discretion of the commissioner, extends the term of the temporary
license upon sufficient cause being furnished to the commissioner
by the temporary licensee, the term of a temporary license shall
not exceed one year from the date of issuance.
SECTION 18. ORS 696.221 is amended to read:
696.221. { - (1) - } A { + principal + } real estate broker
at any time may, and at the request of a licensee { - under the
broker's supervision - } { + associated with the broker + }
shall without delay, return the license of the licensee to the
Real Estate Commissioner. When, and only when, the license of the
licensee is returned to the commissioner, the relationship of the
broker returning the license and the licensee whose license is
returned, is, for the purposes of ORS 696.010 to 696.490, 696.600
to 696.730, 696.800 to 696.855 and 696.995, terminated. Before
the { + principal + } broker returns the license of a licensee
to the commissioner the broker shall make a reasonable attempt to
give the licensee notice of the broker's intent to do so.
{ - (2) After the license of a licensee has been returned to
the commissioner under subsection (1) of this section by the
broker it may: - }
{ - (a) Become an inactive license. - }
{ - (b) Be reissued to the same broker. - }
{ - (c) Be reissued to a different broker. - }
SECTION 19. ORS 696.226 is amended to read:
696.226. (1) When a { + real estate broker or a principal real
estate + } broker ceases to maintain a place of business { +
designated as a main office, + } the broker shall return the
broker's { + real estate + } license and { + , if a principal
real estate broker, + } the licenses of all persons { - under
the broker's supervision - } { + associated with the principal
broker + } to the Real Estate Commissioner, who shall keep such
licenses { - on record - } as inactive licenses.
(2) While a license is being held by the commissioner as an
inactive license, the licensee shall not engage in, or carry on,
or advertise or hold the licensee out as engaging in professional
real estate activity within this state.
(3) Inactive { - licenses - } { + licensees + } may be
{ - : - }
{ - (a) Renewed upon the payment of the renewal fee specified
in ORS 696.270. - }
{ - (b) Reactivated upon application to the commissioner and
the payment of the reactivation fee specified in ORS 696.270. - }
{ - (c) Revoked or suspended - } { + sanctioned + } by the
commissioner { + as provided under ORS 696.301 + } when
conditions exist under which the commissioner would have been
authorized to { - revoke or suspend the license if it were
active - } { + sanction an active licensee + }.
SECTION 20. ORS 696.235 is amended to read:
696.235. (1) An inactive { + real estate + } license may be
renewed as an inactive license for a period of two years.
(2) To reactivate a license which has been renewed as an
inactive license, the licensee, during the year in which the
licensee wishes to reactivate the license and prior to the
issuance of the active license, must:
Enrolled Senate Bill 446 (SB 446-A) Page 15
(a) Complete the { + continuing + } education requirements of
ORS 696.174 { - (4) and (5) - } ; and
(b) { + If the license has been inactive for two consecutive
years preceding the request to reactivate the license,
+ }complete successfully an examination to be conducted by the
Real Estate Agency to exhibit knowledge on current real estate
matters.
{ - (3) This section shall not apply to a broker whose
license becomes inactive on account of the issuance and retention
of an active associate broker license. - }
SECTION 21. ORS 696.241 is amended to read:
696.241. (1) Each real estate broker { + who is a sole
practitioner and each principal real estate broker + } shall
maintain in this state one or more separate bank accounts that
shall be designated a Clients' Trust Account in which all trust
funds received or handled by the broker and the real estate
licensees subject to the supervision of the broker on behalf of
any other person shall be deposited unless, pursuant to written
agreement of all parties having an interest in the trust funds,
the trust funds are immediately placed in a neutral escrow
depository in this state.
(2) Each real estate broker { + or principal real estate
broker + } shall file with the Real Estate Agency, on forms
approved by the Real Estate Commissioner, a statement identifying
the name of the bank or banks, account number or account numbers,
and name of account or accounts for each Clients' Trust Account
maintained.
(3) Each real estate broker { + or principal real estate
broker + } shall authorize the agency, by a form approved by the
commissioner, to examine any Clients' Trust Account, by a duly
authorized representative of the agency. The examination shall be
made at such times as the commissioner may direct.
(4) If a { - branch office - } { + real estate broker or
principal real estate broker + } maintains a separate Clients'
Trust Account { + in a branch office, + } a separate bookkeeping
system shall be maintained in the branch office, provided a copy
of { - each document - } { + the records + } required by the
provisions of ORS 696.280 { - is - } { + are + } maintained
in the main office of the { - real estate - } broker.
(5) Trust funds received by a real estate broker { + or
principal real estate broker + } may be placed by the broker in a
federally insured interest-bearing bank account, designated a
Clients' Trust Account, but only with the prior written approval
of all parties having an interest in the trust funds. The
earnings of such interest-bearing account shall not inure to the
benefit of the real estate broker { + or principal real estate
broker + } unless expressly approved in writing before deposit of
the trust funds by all parties having an interest in the trust
funds.
(6) A real estate broker { + or principal real estate
broker + } is not entitled to any part of any interest earnings
on trust funds deposited under subsection (5) of this section or
to any part of the earnest money or other money paid to the
broker in connection with any real estate transaction as part or
all of the broker's commission or fee until the transaction has
been completed or terminated. The question of the disposition of
forfeited earnest money shall be negotiated between { - a - }
{ + the + } real estate broker { + or principal real estate
broker + } and { + the + } seller at the time of executing any
listing agreement or earnest money agreement. The result of such
Enrolled Senate Bill 446 (SB 446-A) Page 16
negotiation shall be filled in on the agreement form at the time
of signing by the seller and either separately initialed by the
seller or placed immediately above the signature of the seller.
(7) Clients' Trust Account funds are not subject to execution
or attachment on any claim against { - the - } { + a + } real
estate broker { + or principal real estate broker + }.
(8) No person shall knowingly keep or cause to be kept any
funds or money in any bank under the heading of Clients' Trust
Account or any other name designating such funds or money as
belonging to the clients of any real estate broker { + or
principal real estate broker + }, except actual trust funds
deposited with the broker.
(9) The agency may provide by rules for other records to be
maintained and for the manner in which trust funds are deposited,
held and disbursed.
SECTION 22. ORS 696.243 is amended to read:
696.243. (1) Any real estate broker, { + principal real estate
broker, + } real estate property manager or escrow agent who is
required by the Real Estate Commissioner to maintain the canceled
checks used to disburse moneys from the licensee's clients' trust
account may substitute a copy of the original canceled check, if
the copy { + is provided by a bank and + } is produced by
optical imaging or other process that accurately reproduces the
original or forms a durable medium for reproducing the original,
and the copy is at least 300 dots per inch in quality.
(2) A real estate broker, { + principal real estate
broker, + } real estate property manager or escrow agent may use
electronic fund transfers for the deposit into or for withdrawal
from a clients' trust account established under ORS 696.241 or
696.578, if the bank furnishes to the licensee an accurate paper
record of the deposits and withdrawals.
(3) As used in subsection (2) of this section, 'electronic fund
transfer' has the meaning set forth in section 903 of the
Electronic Transfer Act (P.L. 90-321, 15 U.S.C. s1693a).
SECTION 23. ORS 696.245 is amended to read:
696.245. (1) Each real estate broker { + who is a sole
practitioner and each principal real estate broker + }, at the
time a Clients' Trust Account is opened under ORS 696.241, shall
provide the bank in which the account is opened with a notice in
substantially the following form:
_________________________________________________________________
NOTICE OF CLIENTS' TRUST ACCOUNT
To: (name of bank) _____
Under the Oregon Real Estate License Law, I am the real estate
broker, { - designated - } { + principal + } real estate
broker or designated real estate appraiser for (licensed name of
broker or
{ - organization - } { + business + }) ________.
Further, under ORS 696.241, I am required to maintain in Oregon
a Clients' Trust Account for the purpose of holding funds
belonging to others.
With regard to the account(s) numbered ______ which is/are
designated as a Clients' Trust Account, the account(s) is/are
maintained with you as a depository for money belonging to
persons other than myself and in my fiduciary capacity as a real
estate broker { + or principal real estate broker + }
established by client agreements in separate documents.
Dated: (insert date)
Enrolled Senate Bill 446 (SB 446-A) Page 17
____________
(signature of broker)
ACKNOWLEDGMENT OF RECEIPT
I, ____________, a duly authorized representative of (bank)
____________, do hereby acknowledge receipt of the above NOTICE
OF CLIENTS' TRUST ACCOUNT on (date) ____.
____________
(signature)
____________
(title)
_________________________________________________________________
(2) The acknowledged copy of the notice described in subsection
(1) of this section shall be retained by the real estate
broker { + or principal real estate broker + } as provided in
ORS 696.241 for the retention of trust account records, subject
to inspection by the Real Estate Commissioner or the
commissioner's authorized representative.
SECTION 24. ORS 696.265 is amended to read:
696.265. { + Notwithstanding ORS 696.040 to 696.235 and
696.255, + } the Real Estate Commissioner may prescribe by rule
the terms and conditions for { + license recognition of a
nonresident real estate broker or salesperson and for
+ }reciprocity agreements with other states and countries,
including but not limited to application procedures, license
qualifications, license maintenance, limitations on activities
and license renewal requirements.
SECTION 25. ORS 696.270 is amended to read:
696.270. The maximum fees described in this section may be
charged by and paid to the Real Estate Agency. Actual fees shall
be prescribed by the Real Estate Commissioner with approval of
the Oregon Department of Administrative Services. This section
applies to the following fees:
(1) For each licensing examination { - described in ORS
696.130 (1), (2) or (3) - } applied for, $75 { + or, for each
licensing examination applied for under ORS 696.235, $40 + }.
{ - For each prescribed examination to show competence in a
required area of real estate knowledge or each licensing
examination prescribed in ORS 696.235 applied for, $40. - }
(2) For each real estate broker's, { - real estate
organization - } { + principal real estate broker's + } or real
estate property manager's license, $230 { - ; and for each
biennial renewal of a real estate license thereafter, $230 - } .
{ + (3) For each renewal of a real estate broker's, principal
real estate broker's or real estate property manager's license,
$230.
(4) For each notification of the opening or closing of a
registered branch office of a real estate broker or principal
real estate broker, at times other than the time of issuing or
renewing the broker's license, $10. + }
{ - (3) For each license as a real estate broker or real
estate property manager issued to a designated real estate broker
or real estate property manager in a real estate organization,
$230; and for each biennial renewal of such license thereafter,
$230. - }
{ - (4) For each associate broker's license a fee of $230 and
for each biennial renewal a fee of $230. - }
{ - (5) For each real estate salesperson's license, $180; and
for each biennial renewal of such license thereafter, $180. - }
Enrolled Senate Bill 446 (SB 446-A) Page 18
{ - (6) For each additional office or place of business, a
biennial fee of $230. - }
{ - (7) - } { + (5) + } For each change of name or address
of a broker on the records of the agency, $10.
{ - (8) - } { + (6) + } For each duplicate license,
{ - where - } { + when + } the original license is lost or
destroyed and affidavit made thereof, $20.
{ - (9) For each salesperson's or associate broker's license
issued when change of business location or change of name,
$10. - }
{ - (10) - } { + (7) + } For each transfer of a
{ - designated - } { + real estate + } broker's { + ,
principal real estate broker's + } or { - designated - } real
{ + estate + } property manager's license within the same
license status
{ - and for each transfer of an associate broker's or
salesperson's license - } , $10.
{ - (11) - } { + (8) + } For the renewal of a real estate
broker's { + , principal real estate broker's + } or real estate
property manager's inactive license, $110.
{ - (12) For the renewal of a salesperson's inactive license,
$90. - }
{ - (13) - } { + (9) + } For the reactivation of a real
estate broker's { + , principal real estate broker's + } or real
estate property manager's inactive license, $75 { - , for the
reactivation of an associate broker's inactive license, $75, and
for the reactivation of a salesperson's inactive license, $75 - }
.
{ - (14) - } { + (10) + } In addition to the
{ - biennial - } renewal fee, for late renewal, $30.
{ - (15) - } { + (11) + } For a temporary license issued
under ORS 696.205, $40, and for an extension thereof, $40.
{ + (12) For initial registration of a business name,
$230. + }
{ - (16) For each real estate professional corporation
registration, $20, and each biennial renewal of the registration
thereafter, $20. - }
SECTION 26. ORS 696.280 is amended to read:
696.280. (1) { - Every person licensed as - } A real estate
broker { + or principal real estate broker + } shall maintain
within this state { + complete and adequate + } records of all
professional real estate activity conducted by or through the
broker. { + The Real Estate Agency shall specify by rule the
records required to establish complete and adequate records of a
broker's professional real estate activity. The agency may not
require by rule the use or generation of documents not otherwise
required by law or voluntarily generated during a real estate
transaction. + } { - A broker shall keep records of offers
handled by or through the broker on a prospective sale, purchase,
lease option or exchange of real estate where the prospective
transaction fails. The records shall include a consecutively
numbered file for each offer or transaction which involves the
actual sale, purchase, lease option or exchange of real property,
which file shall contain, where applicable: - }
{ - (a) A copy of any listing agreement, which shall evidence
the signatures of the parties; - }
{ - (b) A copy of any earnest money agreement, which shall
evidence the signature of the party or parties; - }
{ - (c) A copy of any receipt issued by the broker to
evidence acceptance of funds or documents; - }
Enrolled Senate Bill 446 (SB 446-A) Page 19
{ - (d) In any real estate transaction in which the broker
performed the closing, a copy of any closing statements showing
all receipts, disbursements and adjustments, which shall evidence
the signature of the seller or sellers, the buyer or buyers;
and - }
{ - (e) A copy of any vouchers of bills or obligations paid
by the broker for the account of the seller(s) or buyer(s). - }
(2) { + (a) The records of a principal real estate broker or a
real estate broker who is a sole practitioner shall include
records of attendance in continuing education courses by the
broker. The records of attendance shall state the name of the
broker and the date of the broker's attendance, and shall be the
basis for self-certification under ORS 696.174.
(b) + } { - Every person licensed as a real estate broker,
when engaged in professional real estate activity other than that
described in subsection (1) of this section shall maintain within
this state adequate records of all professional real estate
activity. Those - } { + A principal real estate broker's + }
records shall
{ - also - } include records of attendance { - at
educational sessions - } { + in continuing education
courses + } by licensees { - licensed - } { + associated + }
with the { + principal + } broker. The record of attendance
shall state the name of the licensee and the date of the
licensee's attendance, and shall be the basis for the certificate
of attendance submitted under ORS 696.174 { - (4) and (5) - } .
(3) { - Such - } { + The + } records shall at all times be
open for inspection by the Real Estate Commissioner or the
commissioner's
{ - duly - } authorized representatives. The records of each
transaction shall be maintained by the licensee for a period of
not less than six years after the date of the transaction. { +
The records may be maintained in any format that allows for
inspection and copying by the commissioner or the commissioner's
representatives, as determined by the commissioner by rule. + }
SECTION 27. ORS 696.290 is amended to read:
696.290. (1) { - No - } { + A + } real estate licensee
shall { + not + } offer, promise, allow, give, pay or rebate,
directly or indirectly, any part or share of the licensee's
commission or compensation arising or accruing from any real
estate transaction or pay a finder's fee to any person who is not
a real estate licensee licensed under
{ - ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to
696.855 and 696.995 - } { + section 9 of this 2001 Act + }.
However, a real estate broker { + or principal real estate
broker + } may pay a finder's fee or a share of the commission on
a cooperative sale where such payment is made to a licensed real
estate broker in another state or country provided that the state
or country in which that broker is licensed has a law permitting
real estate brokers to cooperate with real estate brokers { + or
principal real estate brokers + } in this state and that such
nonresident real estate broker does not conduct in this state any
acts constituting professional real estate activity and for which
compensation is paid. { + If a country does not license real
estate brokers, the payee must be a citizen or resident of the
country and represent that the payee is in the business of real
estate brokerage in the other country. + } { - No real estate
salesperson or associate - } { + A + } real estate broker
{ + associated with a principal real estate broker + } shall
{ + not + } { - be engaged by, or - } accept compensation from
Enrolled Senate Bill 446 (SB 446-A) Page 20
{ - , - } any person other than the { + principal + } real
estate broker { - under - } { + with + } whom the
{ - salesperson or associate - } { + real estate + } broker is
{ - licensed - } { + associated + } at the time { + . + }
{ - , and no - } { + A principal + } real estate broker shall
{ + not + } make payment to the { - salesperson or
associate - } { + real estate + } broker of another
{ + principal + } real estate broker except through the
{ + principal + } real estate broker with whom { - such - }
{ + the + } real estate { - salesperson or associate - }
broker is { - licensed - } { + associated + }. Nothing in
this section prevents payment of a commission or fee earned by
{ - such - } { + a + } real estate { - salesperson or
associate - } broker { + or principal real estate broker + }
while licensed, because of change of affiliation or inactivation
of the { - salesperson's or associate - } broker's license.
(2) Nothing in subsection (1) of this section is intended to
prohibit a real estate licensee who has a written property
management agreement with the owner of a residential building or
facility from authorizing the payment of a referral fee, rent
credit or other compensation to an existing tenant of the owner
or licensee, or a former tenant if the former tenant resided in
the building or facility within the previous six months, as
compensation for referring new tenants to the licensee.
(3) Nothing in subsection (1) of this section is intended to
prevent an Oregon real estate broker { + or principal real
estate broker + } from sharing a commission on a cooperative
nonresidential real estate transaction with a person who holds an
active real estate license in another state or country, provided:
(a) Before the out-of-state real estate licensee performs any
act in this state that constitutes professional real estate
activity, the licensee and the cooperating Oregon real estate
broker { + or principal real estate broker + } agree in writing
that the acts constituting professional real estate activity
conducted in this state will be under the supervision and control
of the cooperating Oregon broker and will comply with all
applicable Oregon laws;
(b) The cooperating Oregon real estate broker or { - a - }
{ + principal + } real estate broker { - engaged by the
cooperating broker - } accompanies the out-of-state real estate
licensee and the client during any property showings or
negotiations conducted in this state; and
(c) All property showings and negotiations regarding
nonresidential real estate located in this state are conducted
under the supervision and control of the cooperating Oregon real
estate broker or { - a - } { + principal + } real estate
broker { - engaged by the cooperating broker - } .
{ + (4) Nothing in subsection (1) of this section is intended
to prohibit a real estate licensee from directly compensating a
licensed personal assistant if permitted by the terms, conditions
and requirements of a licensed personal assistant agreement under
section 30 of this 2001 Act. + }
{ - (4) - } { + (5) + } As used in subsection (3) of this
section, ' nonresidential real estate' means any real property
that is improved or available for improvement by commercial
structures or five or more residential dwelling units.
SECTION 28. ORS 696.301 is amended to read:
696.301. The Real Estate Commissioner may suspend or revoke the
real estate license of any real estate licensee, reprimand any
Enrolled Senate Bill 446 (SB 446-A) Page 21
licensee or deny the issuance or renewal of a license to an
applicant who has done any of the following:
(1) Knowingly or negligently pursued a continued course of
material misrepresentation in matters related to professional
real estate activity, whether or not damage or injury resulted,
or knowingly or negligently made any material misrepresentation
or false promise in a matter related to professional real estate
activity, if the material misrepresentation or material false
promise created a reasonable probability of damage or injury,
whether or not damage or injury actually resulted.
(2) Accepted a commission or other valuable consideration as a
real estate { - salesperson or associate real estate broker - }
{ + licensee + } for the performance of any professional real
estate activity from any person, except the { + principal + }
real estate broker with whom the { - real estate salesperson or
associate real estate broker - } { + licensee + } is
{ - licensed - } { + associated + }. { + Nothing in this
subsection is intended to prevent a real estate broker from
directly compensating a licensed personal assistant if permitted
by the terms, conditions and requirements of a licensed personal
assistant agreement under section 30 of this 2001 Act. + }
(3) Represented or attempted to represent a { + principal + }
real estate broker other than the { + principal + } real estate
broker with whom the real estate { - salesperson or associate
real estate - } broker is { - licensed - } { +
associated + }.
(4) Failed, within a reasonable time, to account for or to
remit any moneys or to surrender to the rightful owner any
documents or other valuable property coming into the licensee's
possession which belongs to others.
(5) Disregarded or violated any provisions of ORS 696.010 to
696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995.
{ - (6) Knowingly or negligently made, printed, distributed
or in any manner published materially misleading or untruthful
advertising, descriptions or promises, of such character as
reasonably to induce any person to act to the damage or injury of
the person, whether or not actual damage or injury resulted. - }
{ + (6) Knowingly or negligently authorized, directed, made,
printed, distributed, circulated or published, in the course of
the licensee's business, materially misleading or untruthful
advertising, descriptions, statements, representations or
promises of such character as reasonably to induce a person to
act in a manner that may lead to damage or injury to the person,
whether or not damage or injury actually occurred. + }
(7) Guaranteed, authorized or permitted any person to guarantee
future profits which may result in the resale of real property.
(8) Placed a sign on any property offering it for sale or for
rent without the written authority of the owner or the owner's
authorized agent.
(9) Failed for any reason to pay to the commissioner the
license registration or renewal fee as specified in ORS 696.270
within the time specified in that section.
(10) Commingled the money or other property of the principal or
client with the licensee's own.
(11) Failed or refused upon demand to produce or to supply true
copies of any document, book or record in the licensee's
possession or control, or required { - by the provisions of - }
{ + pursuant to + } ORS 696.280 concerning any real estate
business transacted by the licensee, for inspection by the Real
Enrolled Senate Bill 446 (SB 446-A) Page 22
Estate Commissioner or the commissioner's authorized
representative.
(12) Failed to maintain at all times { - in the licensee's
principal place of business - } a complete record as required
{ - by law - } { + under ORS 696.280 and rules of the Real
Estate Agency + } of every transaction which comes within the
provisions of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800
to 696.855 and 696.995.
(13) Violated ORS 659.033.
(14) Acted for more than one party in a transaction, in the
negotiation of a transaction, without the knowledge and written
permission of all parties for whom the licensee acted.
(15) Acted in the dual capacity of agent and undisclosed
principal in any transaction.
(16) Induced { + or attempted to induce + } any party to { +
an employment agreement, + } { - a - } contract, sale or lease
to break such contract for the purpose of substituting in lieu
thereof a new contract with the same principal or different
principal.
(17) Offered real estate for sale or lease without the
knowledge and consent of the owner or the owner's authorized
agent or on terms other than those authorized by the owner or the
owner's authorized agent.
(18) Negotiated { + or attempted to negotiate + } a { +
purchase, + } sale, exchange, lease option or lease of real
estate directly with an owner { + , purchaser + } or lessor
knowing that such owner { + , purchaser or lessor + } had a
written outstanding contract { + for exclusive representation
with another real estate broker or principal real estate broker
to represent the owner, purchaser, or lessor in negotiations + }
in connection with such property { - , granting an exclusive
agency or an exclusive right to sell to another real estate
broker - } without the { + prior written + } consent of the
other broker.
(19) Accepted employment or compensation for:
(a) The preparation of a competitive market analysis or letter
opinion, the representation of a taxpayer under ORS 305.230,
306.115 or 309.100 or the giving of an opinion in any
administrative or judicial proceeding regarding the value of real
estate for taxation contingent upon the reporting of a
predetermined value; or
(b) The preparation of a competitive market analysis or letter
opinion, the representation of a taxpayer under ORS 305.230,
306.115 or 309.100 or the giving of an opinion in any
administrative or judicial proceeding regarding the value of real
estate for taxation for real estate in which the licensee had an
undisclosed interest.
(20) Failed to maintain on deposit in a bank account or neutral
escrow depository funds entrusted to the licensee as a real
estate broker { + or principal real estate broker + } by the
principal or other as required by ORS 696.241 and { - the - }
rules of the Real Estate Agency.
(21) Paid a commission or compensation to any person,
performing professional real estate activity who has not first
secured a license under this chapter or is a nonresident real
estate broker licensed in another state or country and not
licensed in this state, except as permitted by ORS 696.290.
(22) Failed to deliver within a reasonable time a completed
copy of any purchase agreement or offer to buy or sell real
estate to the purchaser and to the seller.
Enrolled Senate Bill 446 (SB 446-A) Page 23
(23) Failed to ensure, in any real estate transaction
{ - , - } in which such real estate broker { + or principal
real estate broker + } performed the closing, that the buyer and
seller each received a complete detailed closing statement
showing the amount and purpose of all receipts, adjustments and
disbursements.
(24) { - If - } { + Failed + }, as { - an associate - }
{ + a + } real estate broker { - or real estate
salesperson - } { + associated with a principal real estate
broker + }, { - failed - } to place, as soon after receipt as
practicable, in the custody of the { + principal + } real estate
broker { - with which the licensee is licensed - } , any
deposit money or other money or funds entrusted to the
{ - licensee - } { + real estate broker + } by any person
dealing with the { - licensee - } { + real estate broker + }
as a representative of { - such licensed broker - } { + the
principal real estate broker + }.
(25) Procured or attempted to procure { - , - } a real estate
license for personal use or use of any { - associate broker or
salesperson - } { + other person + } by fraud,
misrepresentation { - , - } or deceit or by making any material
misstatement of fact in an application for a real estate license.
(26) Entered a plea of nolo contendere, or has been found
guilty of, or been convicted of, a felony or misdemeanor
substantially related to the licensee's trustworthiness or
competence to engage in professional real estate activity.
{ - (27) Knowingly authorized, directed or aided in the
publication, advertisement, distribution or circulation of any
material false statement or misrepresentation concerning the
licensee's business or any real estate offered for sale. - }
{ + (27) Violated or disregarded any rule of the Real Estate
Agency. + }
(28) Demonstrated negligence { + , + } { - or - }
incompetence { + or untrustworthiness + } in performing any act
for which the licensee is required to hold a license.
(29) { - If - } { + Failed + }, as a { + principal real
estate + } broker
{ - licensee - } , { - failed - } to exercise supervision
over the activities of real estate { - salespersons, associate
real estate - } brokers or employees. For the purposes of this
subsection, 'supervision ' means { - that - } management by a
{ + principal real estate + }broker that is reasonably designed
{ - and implemented - } to result in compliance by the broker's
{ - real estate salespersons, associate - } real estate brokers
and employees with ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 and 696.995 and any administrative rules
adopted thereunder. { + Written agreements and office policies
described in ORS 696.310 (1) and section 8 of this 2001 Act that
are established and implemented by the principal real estate
broker, and the reasonableness of the principal real estate
broker's actions taken to carry out the agreements and policies,
shall be the bases for determining whether the principal real
estate broker's supervision was adequate under the
circumstances. + }
(30) Violated any of the terms, conditions, restrictions and
limitations contained in any order { - granting a limited
license - } { + issued by the commissioner + }.
(31) { + Committed + } any act or conduct, whether of the same
or of a different character { + , + } specified in this section
which constitutes or demonstrates bad faith { - , incompetency
Enrolled Senate Bill 446 (SB 446-A) Page 24
or untrustworthiness, - } or dishonest { - , - } { + or + }
fraudulent { - or improper - } dealings.
(32) { - If - } { + Violated + }, as a reciprocal real
estate broker or
{ - salesperson licensee - } { + principal real estate
broker + }, { - violated - } any of the terms, conditions or
requirements of this section { + , + }
{ - and - } ORS { - 696.050, - } 696.200 and 696.255 or
rules adopted under ORS 696.265.
(33) Failed to comply with ORS { + 696.805, 696.810, + }
696.815, 696.820, 696.845 or 696.870.
SECTION 29. { + Section 30 of this 2001 Act is added to and
made a part of the Oregon Real Estate License Law. + }
SECTION 30. { + The Real Estate Commissioner may prescribe by
rule the terms and conditions for licensed personal assistant
agreements including, but not limited to, the duties and
responsibilities of, the limitations on the activities of, and
the nature and scope of the business relationship between a real
estate licensee and a licensed personal assistant. + }
SECTION 31. ORS 696.310 is amended to read:
696.310. (1) { - All designated real estate brokers of a real
estate organization shall - } { + If two or more principal real
estate brokers are in business together, the brokers may + } have
equal supervisory control over and shall be equally responsible
for the conduct of other { - designated - } { + principal + }
real estate brokers { - , - } or
{ - the associate - } real estate brokers { - or real estate
salespersons licensed with such real estate organization - }
{ + associated with the principal real estate brokers + }, or
other employees employed by
{ - such real estate organization - } { + the principal real
estate brokers. + } { + The principal real estate brokers shall
execute a written agreement between them and establish office
policies specifying the supervisory control and responsibility
for each principal real estate broker who is a party to the
agreement + }.
{ - (2) The real estate organization may, by appropriate
internal action or agreement, provide for the management and
control over the activities of the real estate organization and
delegate the area of management functions or responsibilities as
among the designated brokers of such real estate organization.
Such internal action or agreement shall not, however, dilute the
equal responsibility of each designated broker under subsection
(1) of this section. - }
{ - (3) - } { + (2) + } An act constituting a violation of
any of the provisions of ORS 696.010 to 696.490, 696.600 to
696.730, 696.800 to 696.855 and 696.995 or of any rule adopted
thereunder by any licensee is not cause for the suspension or
revocation of a license of any real estate licensee associated
with or engaged by such licensee, unless it appears to the
satisfaction of the Real Estate Commissioner that such associated
or engaged real estate licensee had guilty knowledge of the act.
A course of dealing shown to have been persistently and
consistently followed by any real estate licensee shall
constitute prima facie evidence of such knowledge upon the part
of any real estate licensee associated with or engaged by that
licensee. { - In the event of the revocation or suspension of
the license issued to any member of a partnership or to any
officer of an association or corporation, the license issued to
such partnership, association or corporation shall be revoked by
Enrolled Senate Bill 446 (SB 446-A) Page 25
the commissioner, unless, within a time fixed by the
commissioner, where a partnership, the member whose license has
been suspended or revoked agrees to and does terminate any
control over the professional real estate activity of the
partnership during the member's suspension period or until the
member's license is reinstated, or, where an association or
corporation, the officer whose license has been suspended or
revoked agrees to and does terminate any control over the
professional real estate activity of the association or
corporation during the officer's suspension period or until the
officer's license is reinstated. However, such member or officer
may retain an ownership interest in the partnership, association
or corporation during and may reassume control over the
professional real estate activity of the partnership, association
or corporation following termination of the member's or officer's
suspension or the reinstatement of the member's or officer's
license. - }
SECTION 32. ORS 696.320 is amended to read:
696.320. { - (1) - } The suspension or revocation of a { +
principal + } real estate broker's license shall suspend
automatically every license of { - salespersons and
associate - } { + real estate + } brokers engaged by the
{ + principal real estate + }broker pending a { - change of
principal real estate broker or the issuance of a new license - }
{ + transfer of the license + }. { - Such new - } { + A + }
license shall be { - issued - } { + transferred + } if
requested within 30 days after the effective date of the
suspension or revocation of the { + principal real estate + }
broker's license, upon payment of a transfer fee and upon the
receipt of the { - salesperson's or associate - } broker's
original license.
{ - (2) Subsection (1) of this section does not apply to the
licenses of a real estate organization if the suspended or
revoked designated real estate broker is replaced by the
organization prior to the effective date of the suspension or
revocation. - }
SECTION 33. ORS 696.361 is amended to read:
696.361. A real estate property manager is regulated and bound
as a real estate broker { + and as a principal real estate
broker + } { - except by ORS 696.320 and 696.359 - } .
SECTION 34. ORS 696.375 is amended to read:
696.375. (1) The Real Estate Agency is established.
(2) The Real Estate Agency shall be under the supervision and
control of an administrator who shall be known as the Real Estate
Commissioner. The Governor shall appoint the Real Estate
Commissioner who shall have been, before the date of appointment,
for five years a real estate broker { + or principal real estate
broker + } actively engaged in business as such in this state
{ - or a person who has been actively connected with the
administration of the Real Estate Agency, or a predecessor
thereof, for at least one year - } . { + The Governor also may
appoint a person who has been actively connected with the
administration of the agency for at least one year as acting or
temporary commissioner. + } The commissioner shall hold office at
the pleasure of the Governor and shall be responsible for the
performance of the duties imposed upon the agency. The Real
Estate Commissioner shall receive such salary as may be provided
by law.
Enrolled Senate Bill 446 (SB 446-A) Page 26
(3) The appointment of the commissioner is subject to
confirmation by the Senate in the manner prescribed in ORS
171.562 and 171.565.
(4) Before entering upon the duties of office the commissioner
shall give to the state a fidelity bond with one or more
corporate sureties authorized to do business in this state, or an
irrevocable letter of credit issued by an insured institution, as
defined in ORS 706.008, in either case in the sum fixed by the
Governor. The premium for the bond or the fee for the letter of
credit shall be paid by the agency.
SECTION 35. ORS 696.430 is amended to read:
696.430. Copies of all records and papers in the office of the
Real Estate Commissioner duly certified and authenticated by the
seal of the commissioner shall be received in evidence in all
courts equally and with like effect as the original. { + Except
for records of open investigations, + } all records kept in the
office of the commissioner under authority of ORS 696.010 to
696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995 shall
be open to public inspection under such reasonable rules and
regulations as shall be prescribed by the commissioner.
SECTION 36. ORS 696.511 is amended to read:
696.511. (1) { - No - } { + A + } person { - directly or
indirectly - } shall { + not directly or indirectly + } engage
in or carry on, or purport to engage in or carry on the business
or act in the capacity of an escrow agent without first obtaining
a license as an escrow agent under the provisions of ORS 696.505
to 696.590.
(2) Every escrow agent before engaging in the escrow business
shall file in the office of the Real Estate Commissioner an
application for a license, in writing, verified by the applicant
and in the form prescribed by the commissioner. It shall state
the location of the agent's principal office and all branch
offices in this state, the name or style of doing business, the
names, resident and business addresses of all persons interested
in the business as principals, partners, elected officers,
trustees and directors, specifying as to each the person's
capacity and title, the general plan and character of business
and the length of time the agent has been engaged in business.
Notification of changes in the information contained in the
application or in the ownership of the business must be
immediately filed with the commissioner.
(3) The commissioner may require additional information the
commissioner considers necessary in connection with any
application for a license under this section, including but not
limited to verified current financial statements of the escrow
agent, the escrow agent's principals, partners, officers,
trustees or directors and the fingerprints and the criminal
offender information of the applicant. For purposes of requiring
fingerprints and criminal offender information, 'applicant '
means any person having more than five percent ownership interest
in the escrow agency and the corporate officers in direct control
of escrow operations.
(4) The commissioner shall examine the application for a
license and, if satisfied that the applicant should not be
refused a license under ORS 696.535, the commissioner shall issue
the license.
{ + (5) To qualify for an escrow agent's license or for
renewal of an escrow agent's license, an applicant must make full
payment of any outstanding civil penalties or other moneys due
and owing to the Real Estate Agency except civil penalties or
Enrolled Senate Bill 446 (SB 446-A) Page 27
other moneys due that are the subject of judicial or
administrative review on the date of the application for license
or license renewal. + }
SECTION 37. ORS 696.520 is amended to read:
696.520. The provisions of ORS 696.505 to 696.590 do not apply
to and the term 'escrow agent' does not include:
(1) Any person doing business under the laws of this state or
the United States relating to banks, mutual savings banks, trust
companies, savings and loan associations, consumer finance
companies, or insurance companies except to the extent that the
person provides real estate closing escrow services other than
those permitted under subsection (3) of this section.
(2) An attorney at law rendering services in the performance of
duties as attorney at law.
(3) Any firm or corporation lending money on real or personal
property and which firm or corporation is subject to licensing,
supervision or auditing by a federal or state agency but only to
the extent of closing a loan transaction between such firm or
corporation and a borrower, and seller, if a fee for escrow
services is not charged to the seller.
(4) Any person doing any of the acts specified in ORS 696.505
(2) under order of any court.
(5) Any real estate broker { + or principal real estate
broker + } licensed under { - ORS 696.010 to 696.490, 696.600
to 696.627, 696.800 to 696.855 and 696.995 - } { + section 9 of
this 2001 Act + } who performs the closing for the principals in
a real estate transaction handled by the broker, if the
principals are not charged a separate fee for escrow services.
(6) Any collection agency registered under ORS 697.015 that is
engaged in any collection or billing activity without holding
documents relating to the debt.
SECTION 38. ORS 696.535 is amended to read:
696.535. (1) The Real Estate Commissioner may refuse to license
any escrow agent, or may suspend or revoke any license, by
entering an order to that effect, with the commissioner's
findings in respect thereto, if upon examination into the affairs
of the applicant or licensee, either in the performance of
routine duties, or upon field examination, or upon hearing, it is
determined that the applicant or licensee:
(a) Has, under generally accepted accounting principles, a
deficit net worth;
(b) Has demonstrated unworthiness to transact the business of
agent;
(c) Does not conduct business in accordance with law, or has
violated any provisions of ORS 696.505 to 696.590;
(d) Has committed fraud in connection with any transaction
governed by ORS 696.505 to 696.590;
(e) Has made any misrepresentations or false statement of an
essential or material fact to, or concealed any essential or
material fact from, any person in the course of the escrow
business;
(f) Has knowingly made or caused to be made to the commissioner
any false representation of a material fact, or has suppressed or
withheld from the commissioner any information which the
applicant or licensee possesses, and which if submitted would
have disqualified the applicant or licensee from original or
renewed licensing under ORS 696.505 to 696.590;
(g) Has failed to account to the principals or persons entitled
thereto in a real estate transaction for the moneys, documents or
other things of value received in the transaction;
Enrolled Senate Bill 446 (SB 446-A) Page 28
(h) Has not delivered, after a reasonable time, to persons
entitled thereto, moneys, documents or other things of value held
or agreed to be delivered by the licensee, as and when paid for
and due to be delivered;
(i) Has refused to permit an examination by the commissioner of
the escrow agent's books and affairs, or has refused or failed,
within a reasonable time, to furnish any information, records or
files or make any report that may be required by the commissioner
under the provisions of ORS 696.505 to 696.590; or
(j) Has been convicted of a felony or any misdemeanor that is
substantially related to the escrow agent's competency or
trustworthiness to engage in the business of an escrow agent.
(2) It is sufficient cause for refusal or revocation of a
license in case of a partnership or corporation or any
unincorporated association, if any member of a partnership or any
officer or director of the corporation or association has been
guilty of any act or omission which would be cause for refusing
or revoking the registration of an individual agent.
(3) All escrow agents shall keep and maintain at all times in
their licensed offices, complete and suitable records of all
escrow transactions made by them and of their business, including
but not limited to books, papers and data clearly reflecting the
financial condition of the business of such agents. Such records
shall at all times be open for inspection by the commissioner or
the commissioner's authorized representatives. Escrow records
shall be kept for a period of six years from the date of the
escrow transaction. { + The records may be maintained in any
format, as determined by the commissioner by rule, that allows
for inspection and copying by the commissioner or the
commissioner's representatives. + } { - Where - }
{ + When + } an escrow agent acts as a subservicer for another
escrow agent, with respect to subserviced escrow transactions the
subservicer { + + }shall keep the records required to be kept
by the escrow agent under this section.
(4) Notwithstanding the provisions of subsection (3) of this
section, an escrow agent may store such records at a place in
this state other than the licensed office of the escrow agent if
the escrow agent provides prior written notice to the Real Estate
Commissioner of the location and means of access to the records.
SECTION 39. ORS 696.541 is amended to read:
696.541. (1) The Real Estate Commissioner shall have general
supervision and control over all escrow agents doing business in
this state. Subject to ORS 183.310 to 183.550, the commissioner
may adopt such rules as reasonably necessary for the enforcement
of ORS 696.505 to 696.590.
(2) All such escrow agents shall be subject to audits or
examinations by the commissioner, or the commissioner's
authorized representatives at any time the commissioner considers
advisable. The commissioner may collect from each escrow agent
the reasonable expenses of such audit or examination including
but not limited to any administrative expense for travel.
(3) The provisions of this section and of any other section
relating to the examination of the affairs of an escrow agent
shall extend to an escrow agent whose license has expired or been
revoked or suspended, if in the judgment of the commissioner,
such agent has violated { - any condition of the license or - }
any provisions of ORS 696.505 to 696.590.
SECTION 40. ORS 696.555 is amended to read:
696.555. (1) When the Real Estate Commissioner ascertains by
examination or otherwise that the assets or capital of any agent
Enrolled Senate Bill 446 (SB 446-A) Page 29
are impaired, as described in ORS 696.535 (1)(a), the
commissioner may immediately take possession of all the property,
business and assets of the agent which are located in this state
and retain possession of them pending the further proceedings
specified in this section. { - Should the board of directors or
any officer or person in charge of the offices of such agent
refuse to permit the commissioner to take possession, the
commissioner shall communicate the fact to the Attorney General,
whereupon it shall become the duty of the Attorney General at
once to institute such proceedings as may be necessary to carry
out the purposes of this section. - }
(2) Pursuant to subsection (1) of this section, the
commissioner may apply to the circuit court of the county in
which the agent's principal place of business is located for an
order directing the agent to show cause why a receiver should not
be appointed to take charge of and manage or liquidate if
necessary the assets of the agent utilized in professional escrow
activity in such a manner as to prevent or minimize such
financial loss to others.
(3) If the court is satisfied from reading the commissioner's
petition that the facts therein alleged, if established, warrant
such receivership action, the court shall issue such order to
show cause. The court may at such time, without notice, issue a
temporary injunction restraining such agent, or any of the
agent's officers, directors, stockholders, members, agents or
employees, from the transaction of any professional escrow
activity, or the waste or disposition of any such assets until
further order of the court. Should such an injunction be issued,
a hearing on whether the injunction shall be continued shall be
held within five business days of its service.
(4) On return of the order to show cause, and after a full
hearing, the court shall either deny the application or grant the
same, together with such other relief as the court may deem
necessary.
(5) Notwithstanding any other provision of law, no bond shall
be required of the commissioner or the commissioner's authorized
representatives as a prerequisite for the issuance of any
injunction or other order pursuant to this section.
(6) At any time during such proceedings, the agent may satisfy
the court that the activity which prompted such proceedings has
been rectified or that financial loss to others no longer will
likely occur, in which case the court may dismiss such
proceedings.
(7) The expenses of the receiver, compensation of the legal
counsel of the receiver, as well as all expenditures of the
receiver required in such proceedings shall be fixed by the court
and shall be paid out of funds in the hands of the receiver or
entered as a judgment against such licensee.
SECTION 41. ORS 696.582 is amended to read:
696.582. (1) An escrow agent shall hold { + , + } as provided
in subsection (3) of this section, the amount of money or other
property agreed to as a commission in a written real estate
broker's { + or principal real estate broker's + } commission
agreement, if the escrow agent has at the office at which the
escrow is being closed, before the date of closing:
(a) A written notice of demand { + , signed by the real estate
broker or principal real estate broker who is authorized under
rules adopted by the commissioner to enter into the commission
agreement and sign the written notice of demand, + } in
Enrolled Senate Bill 446 (SB 446-A) Page 30
substantially the form set out in subsection (2) of this section;
and
(b) The written closing instructions of the principals which do
not honor the amount and terms of payment in the notice of
demand.
(2) The notice of demand required by subsection (1) of this
section may not be incorporated into any document of agreement
between the principals or between the broker and a principal, and
shall be in substantially the following form:
_________________________________________________________________
Notice of Demand for
Real Estate Commission
To: ________
(Name of Escrow Company)
Re: ________
(Names of Principals to
Transaction)
Your Escrow Number: ____
The undersigned real estate broker { + or principal real
estate broker + } states that such broker has a { + valid + }
written { + commission + } agreement with ____ (Name of
Principal), one of the principals to the transaction referred to
above, and that such principal { - will - } { + is obligated
to + } pay the broker { - a - } { + the + } commission on
account of that transaction. The commission amount is $___ and is
to be paid on the following terms: ______. Demand is hereby made
that the commission be paid in that amount and on those terms,
out of escrow and as a part of your closing of that transaction.
____________
(Name { +
and Signature + } of { + Real Estate + } Broker
{ +
or Principal Real Estate Broker + })
_________________________________________________________________
(3) An escrow agent in a transaction described in subsection
(1) of this section may only disburse the moneys or other
property to:
(a) The broker and { - seller - } { + principal + }, based
upon a written agreement between those parties and directed to
the escrow agent as disbursement instructions;
(b) Any persons, as directed by order of a court of competent
jurisdiction; or
(c) The court, upon filing by the escrow agent of an
interpleader action for the moneys or property.
(4) At the time of filing a notice of demand with an escrow
agent under subsection (1) of this section, the real estate
broker { + or principal real estate broker + } filing the
notice shall deliver a copy of the notice to the principal
identified in the notice.
SECTION 42. ORS 696.609 is amended to read:
696.609. ORS 696.392, 696.600 to 696.627 and 696.995 do not
apply to a person licensed under { - ORS 696.025 (1) to (4) or
(6) or - } { + section 9 of this 2001 Act or to + } those
persons exempt under ORS 696.030 from licensing under ORS
696.020.
SECTION 43. ORS 696.710 is amended to read:
696.710. (1) { - No - } { + A + } person engaged in the
business of, or acting in the capacity of, a real estate
broker { + or principal real estate broker + } within this state
Enrolled Senate Bill 446 (SB 446-A) Page 31
shall { + not + } bring or maintain any action in the courts for
the collection of compensation without alleging and proving that
the person was a { - duly - } licensed { - real estate - }
broker at the time the alleged cause of action arose.
(2) { - No - } { + An + } action in the courts for
collection of compensation for an individual engaged in the
business of, or acting in the capacity of a real estate
{ - salesperson or associate - } broker { + associated with a
principal real estate broker + } may { + not + } be brought or
maintained except by the { - duly licensed - } { +
principal + } real estate broker with whom the { - salesperson
or associate - } { + real estate + } broker was
{ - engaged - } { + associated + } at the time the alleged
cause of action arose.
SECTION 44. ORS 696.800 is amended to read:
696.800. As used in ORS 696.392, 696.600 to 696.627, 696.800 to
696.855 and 696.995, unless the context requires otherwise:
(1) 'Agent' means:
(a) A real estate broker { - licensed under ORS 696.025
(1) - } { + or principal real estate broker + } who has entered
into:
(A) A listing agreement with a seller;
(B) A service contract with a buyer to represent the buyer; or
(C) { - An in-company - } { + A disclosed limited
agency + } agreement; or
(b) A { - real estate licensee licensed under ORS 696.025
(2), (4) or (6) - } { + person licensed under section 9 of this
2001 Act + } who has entered into a written contract with a real
estate broker { + or principal real estate broker + } to act as
the { - real estate - } broker's agent in connection with acts
requiring a real estate license and to function under the
{ - real estate - } broker's supervision.
(2) 'Buyer' means a potential transferee in a real property
transaction, and includes a person who:
(a) Executes an offer to purchase real property from a seller
through an agent; or
{ - (b) Makes a substantive contact. - }
{ - (3) 'First substantive contact' includes, but is not
limited to, the first face-to-face contact or first written
communication, whichever occurs first, in which a prospective
buyer's or seller's specific real property needs or financial
information is discussed. - }
{ - (4) 'In-company,' as used in 'in-company agreement, ' '
in-company representation' and 'in-company sales,' means
occurring within the same real estate organization. - }
{ + (b) Enters into an exclusive representation contract or
buyer's service agreement with a real estate broker or principal
real estate broker, whether or not a sale or transfer of property
results.
(3) 'Confidential information' means information communicated
to a real estate licensee or the licensee's agent by the buyer or
seller of one to four residential units regarding the real
property transaction, including but not limited to price, terms,
financial qualifications or motivation to buy or sell. '
Confidential information' does not mean information that:
(a) The buyer instructs the licensee or the licensee's agent to
disclose about the buyer to the seller or the seller instructs
the licensee or the licensee' agent to disclose about the seller
to the buyer; and
Enrolled Senate Bill 446 (SB 446-A) Page 32
(b) The licensee or the licensee's agent knows or should know
failure to disclose would constitute fraudulent representation.
(4) 'Disclosed limited agency' means a real property
transaction in which the representation of a buyer and seller or
the representation of two buyers occurs within the same real
estate business. + }
(5) 'Listing agreement' means a contract between a seller of
real property and a real estate broker { + or principal real
estate broker + } by which the { - real estate - } broker has
been authorized to act as an agent of the seller for compensation
to offer the real property for sale or to find and obtain a
buyer.
(6) 'Listing price' means the amount expressed in dollars,
specified in the listing agreement, for which the seller is
willing to sell the real property through the listing agent.
(7) 'Offer' means a written proposal executed by a buyer for
the sale or lease of real property.
(8) 'Offering price' is the amount expressed in dollars
specified in an offer to purchase for which the buyer is willing
to buy the real property.
(9) 'Principal' means the person who has permitted or directed
an agent to act on the principal's behalf. In a real property
transaction, this generally means the buyer or the seller.
(10) 'Real property' means any estate in real property,
including a condominium as defined in ORS 100.005, a timeshare
property as defined in ORS 94.803 and the granting of an option
or right of first refusal. 'Real property' also includes a mobile
home or manufactured dwelling owned by the same person who owns
the land upon which the mobile or manufactured home is situated.
' Real property' does not include a leasehold in real property.
(11) 'Real property transaction' means a transaction regarding
real property in which an agent is employed by one or more of the
principals to act in that transaction and includes { + but is
not limited to + } listing agreements { + , buyer's service
agreements, exclusive representation contracts + }and offers to
purchase.
(12) 'Sale' or 'sold' refers to a transaction for the transfer
of real property from the seller to the buyer and includes:
(a) Exchanges of real property between the seller and the buyer
and third parties; and
(b) Land sales contracts.
(13) 'Seller' means a potential transferor in a real property
transaction and includes an owner { + :
(a) + } Who enters into a listing agreement with a real estate
broker { + or principal real estate broker + }, whether or not a
transfer results { - , - } { + ; + } or
{ + (b) + } Who receives an offer to purchase real property,
of which the seller is the owner, from an agent acting on behalf
of a buyer.
SECTION 45. ORS 696.805 is amended to read:
696.805. (1) A real estate licensee who acts under a listing
agreement with the seller acts as the seller's agent only.
{ - (2) A seller's agent has an affirmative obligation to the
seller of the fiduciary duties of loyalty, obedience, disclosure,
confidentiality, reasonable care and diligence and accounting in
dealings with the seller. - }
{ - (3) A seller's agent has an affirmative obligation to the
buyer and the seller of honest dealing and disclosure. - }
Enrolled Senate Bill 446 (SB 446-A) Page 33
{ + (2) A seller's agent owes the seller, other principals
and the principals' agents involved in a real estate transaction
the following affirmative duties:
(a) To exercise reasonable care and diligence;
(b) To deal honestly and in good faith;
(c) To present all written offers, written notices and other
written communications to and from the parties in a timely manner
without regard to whether the property is subject to a contract
for sale or the buyer is already a party to a contract to
purchase;
(d) To disclose material facts known by the seller's agent and
not apparent or readily ascertainable to a party;
(e) To account in a timely manner for money and property
received from or on behalf of the seller;
(f) To be loyal to the seller by not taking action that is
adverse or detrimental to the seller's interest in a transaction;
(g) To disclose in a timely manner to the seller any conflict
of interest, existing or contemplated;
(h) To advise the seller to seek expert advice on matters
related to the transaction that are beyond the agent's expertise;
(i) To maintain confidential information from or about the
seller except under subpoena or court order, even after
termination of the agency relationship; and
(j) Unless agreed otherwise in writing, to make a continuous,
good faith effort to find a buyer for the property, except that a
seller's agent is not required to seek additional offers to
purchase the property while the property is subject to a contract
for sale.
(3) A seller's agent may show properties owned by another
seller to a prospective buyer and may list competing properties
for sale without breaching any affirmative duty to the seller.
(4) Except as provided in subsection (2)(j) of this section, an
affirmative duty may not be waived.
(5) Nothing in this section implies a duty to investigate
matters that are outside the scope of the real estate licensee's
expertise unless the licensee or the licensee's agent agrees in
writing to investigate a matter. + }
SECTION 46. ORS 696.810 is amended to read:
696.810. (1) A real estate licensee other than the seller's
agent may agree with the buyer to act as the buyer's agent only.
{ - However, - } The buyer's agent is not representing the
seller, even if the buyer's agent is receiving compensation for
services rendered, either in full or in part, from the seller or
through the seller's agent.
{ - (2) A buyer's agent has an affirmative obligation to the
buyer of the fiduciary duties of loyalty, obedience, disclosure,
confidentiality, reasonable care and diligence and accounting in
dealing with the buyer. - }
{ - (3) A buyer's agent has an affirmative obligation to the
buyer and the seller of honest dealing and disclosure. - }
{ + (2) A buyer's agent owes the buyer, other principals and
the principals' agents involved in a real estate transaction the
following affirmative duties:
(a) To exercise reasonable care and diligence;
(b) To deal honestly and in good faith;
(c) To present all written offers, written notices and other
written communications to and from the parties in a timely manner
without regard to whether the property is subject to a contract
for sale or the buyer is already a party to a contract to
purchase;
Enrolled Senate Bill 446 (SB 446-A) Page 34
(d) To disclose material facts known by the buyer's agent and
not apparent or readily ascertainable to a party;
(e) To account in a timely manner for money and property
received from or on behalf of the buyer;
(f) To be loyal to the buyer by not taking action that is
adverse or detrimental to the buyer's interest in a transaction;
(g) To disclose in a timely manner to the buyer any conflict of
interest, existing or contemplated;
(h) To advise the buyer to seek expert advice on matters
related to the transaction that are beyond the agent's expertise;
(i) To maintain confidential information from or about the
buyer except under subpoena or court order, even after
termination of the agency relationship; and
(j) Unless agreed otherwise in writing, to make a continuous,
good faith effort to find property for the buyer, except that a
buyer's agent is not required to seek additional properties for
the buyer while the buyer is subject to a contract for purchase
or to show properties for which there is no written agreement to
pay compensation to the buyer's agent.
(3) A buyer's agent may show properties in which the buyer is
interested to other prospective buyers without breaching an
affirmative duty to the buyer.
(4) Except as provided in subsection (2)(j) of this section, an
affirmative duty may not be waived.
(5) Nothing in this section implies a duty to investigate
matters that are outside the scope of the real estate licensee's
expertise unless the licensee or the licensee's agent agrees in
writing to investigate a matter. + }
SECTION 47. ORS 696.815 is amended to read:
696.815. (1) { - Notwithstanding ORS 696.805 (1) and 696.810
(1), - } A real estate licensee { - , either acting alone or
through one or more real estate licensees licensed within the
same real estate organization, - } may represent both the seller
and the buyer in a real estate transaction { + under a disclosed
limited agency agreement + }, with full disclosure { + of the
relationship + } under
{ - subsection (2) of this section and ORS 696.830 (3) - }
{ + the agreement + }.
(2) { - An agent - } { + A real estate licensee + } acting
pursuant to { - an in-company - } { + a disclosed limited
agency + } agreement has the following
{ - affirmative - } { + duties and + } obligations { - to
both the seller and the buyer - } :
{ - (a) Loyalty, obedience, disclosure, confidentiality and
accounting in dealings with both the seller and the buyer.
However, in representing both the seller and the buyer, the agent
shall not, without the express written permission of the
respective person, disclose to the other person: - }
{ + (a) To the seller, the duties under ORS 696.805;
(b) To the buyer, the duties under ORS 696.810; and
(c) To both seller and buyer, except with express written
permission of the respective person, the duty not to disclose to
the other person: + }
(A) That the seller will accept a price lower { - than - }
or terms less favorable than the listing price or terms;
(B) That the buyer will pay a price greater or terms more
favorable than the offering price or terms; or
(C) Specific confidential information { + as defined in ORS
696.800 (3) + } { - previously designated as such in writing by
the buyer or seller, other than price and terms - } .
Enrolled Senate Bill 446 (SB 446-A) Page 35
{ - (b) Reasonable care and diligence. - }
{ - (c) Honest dealing. - }
{ + (3) Nothing in this section implies a duty to investigate
matters that are outside the scope of the real estate licensee's
expertise unless the licensee agrees in writing to investigate a
matter.
(4) In a real estate transaction in which different real estate
brokers associated with the same principal real estate broker
establish agency relationships with different parties to the real
estate transaction, the principal real estate broker shall be the
only broker acting as a disclosed limited agent representing both
seller and buyer. Other brokers shall continue to represent only
the party with whom the broker has an agency relationship unless
all parties agree otherwise in writing.
(5) The principal real estate broker and the real estate
licensees representing either seller or buyer shall owe the
following duties to the seller and buyer:
(a) To disclose a conflict of interest in writing to all
parties;
(b) To take no action that is adverse or detrimental to either
party's interest in the transaction; and
(c) To obey the lawful instructions of both parties. + }
SECTION 48. ORS 696.820 is amended to read:
696.820. { - An agent shall personally provide each seller
and each buyer in a real property transaction with a copy of the
disclosure form set forth in ORS 696.830 and, except as provided
in subsection (3) of this section, shall obtain a signed
acknowledgment of receipt from the seller and the buyer, as set
forth in ORS 696.830 (2). The agent shall provide the disclosure
form as follows: - }
{ - (1) The listing agent, if any, shall provide the
disclosure form to the seller prior to entering into the listing
agreement. - }
{ - (2) The selling real estate licensee shall provide the
disclosure form to the seller at or before the first substantive
contact, unless the selling real estate licensee previously
provided the seller with a copy of the disclosure form pursuant
to subsection (1) of this section. - }
{ - (3) When the selling real estate licensee cannot
personally provide the disclosure form to the seller: - }
{ - (a) The listing agent may provide to the seller the
disclosure form prepared by the selling agent and obtain
acknowledgment of receipt from the seller; or - }
{ - (b) The selling real estate licensee may provide the
disclosure form by certified mail addressed to the seller at the
seller's last-known address, in which case no signed
acknowledgment of receipt is required. - }
{ - (4) The selling real estate licensee shall provide the
disclosure form to the buyer at or before the first substantive
contact. - }
{ - (5) An agent exclusively representing the buyer shall
provide the disclosure form to the buyer at or before the first
substantive contact. - }
{ - (6) The real estate licensee presenting the disclosure
form shall sign and date the disclosure form. - }
{ - (7) If the first substantive contact occurs by telephone,
the real estate licensee shall provide the written disclosure
promptly by mail or facsimile to the address provided by the
prospective buyer or seller or at the first face-to-face contact
with the prospective buyer or seller. - }
Enrolled Senate Bill 446 (SB 446-A) Page 36
{ + (1) The Real Estate Commissioner shall prescribe by rule
the format and content of an initial agency disclosure pamphlet.
The rules must provide that the initial agency disclosure
pamphlet is informational only and may not be construed to be
evidence of intent to create an agency relationship.
(2) An agent shall provide a copy of the initial agency
disclosure pamphlet at the first contact with each represented
party to a real property transaction, including but not limited
to contacts in-person, by telephone, over the Internet or the
World Wide Web, or by electronic mail, electronic bulletin board
or a similar electronic method. + }
SECTION 49. ORS 696.845 is amended to read:
696.845. At the time of signing an offer to purchase, each
buyer shall acknowledge the existing agency
{ - relationship - } { + relationships + }, if any. At the time
a seller accepts an offer to purchase, each seller shall
acknowledge the existing agency
{ - relationship - } { + relationships + }, if any. An agent
to the real property transaction shall obtain the signatures of
the buyers and the sellers to the { - confirmation - } { +
acknowledgment + }, which shall be incorporated into or attached
as an addendum to the offer to purchase or to the acceptance. The
acknowledgment shall be printed in substantially the following
form:
_________________________________________________________________
TO BE COMPLETED
AT TIME OF CONTRACT
{ - The following agency relationship(s) in this transaction
is (are) hereby consented to and acknowledged: - }
__________ (subject property address or legal description)
The following agency relationship(s) in this transaction is (are)
hereby consented to and acknowledged:
(a) __________ (selling real estate licensee) is the agent of
(check one):
___ the buyer exclusively as an agent of the buyer.
___ the seller exclusively as an agent of the seller.
___ both the seller and the buyer as set out in the
{ - in-company - } { + disclosed limited agency + } agreement.
(b) __________ (listing agent if not the same as selling agent)
is the agent of (check one):
___ the seller exclusively as seller's agent.
___ both the seller and the buyer as set out in the
{ - in-company - } { + disclosed limited agency + } agreement.
{ + Both the buyer and the seller acknowledge having received
the initial agency disclosure pamphlet required by ORS
696.820. + }
ACKNOWLEDGED
Enrolled Senate Bill 446 (SB 446-A) Page 37
Buyer: _____ Dated: _____
Buyer: _____ Dated: _____
Seller: _____ Dated: _____
Seller: _____ Dated: _____
_________________________________________________________________
SECTION 49a. ORS 696.855 is amended to read:
696.855. (1) ORS 696.301, 696.392, 696.600 to 696.627 { - ,
696.800 to 696.855 - } and 696.995 { - shall - } { + do + }
not directly, indirectly or by implication limit or alter any
preexisting common law or statutory right or remedy including
actions for fraud, negligence or equitable relief.
(2) The terms 'loyalty,' 'obedience,' 'disclosure, ' '
confidentiality,' 'reasonable care and diligence' and '
accounting in dealings' shall be interpreted under the common law
of agency.
(3) Common law and statutory remedies are not affected by ORS
696.301, 696.392, 696.600 to 696.627 { - , 696.800 to
696.855 - } and 696.995.
SECTION 50. ORS 696.870 is amended to read:
696.870. (1) { + (a) + } A real estate licensee representing a
seller of real property { - under this section and ORS 105.465
to 105.490 and 696.301 - } has a duty to inform each
{ + represented + } seller
{ - represented by the real estate licensee - } of the
seller's duties created by this section and ORS 105.465 to
105.490 and 696.301.
{ + (b) + } A real estate licensee representing a buyer of
real property has a duty to inform each { + represented + }
buyer { - represented by the real estate licensee - } of the
buyer's rights under this section and ORS 105.465 to 105.490 and
696.301.
(2) If a real estate licensee performs the duties set forth in
subsection (1) of this section, the real estate licensee shall
have no further duties under this section.
{ + (3) Notwithstanding subsections (1) and (2) of this
section, for the purposes of ORS 696.301, a real estate licensee:
(a) Representing a seller by written agreement or course of
conduct is bound by the standards of conduct and duties created
under ORS 696.805;
(b) Representing a buyer by written agreement or course of
conduct is bound by the standards of conduct and duties created
under ORS 696.810; and
(c) Acting as a disclosed limited agent by a written agreement
or course of conduct is bound by the standards of conduct and
duties created under ORS 696.815. + }
SECTION 51. { + Section 52 of this 2001 Act is added to and
made a part of the Oregon Real Estate License Law. + }
SECTION 52. { + (1) A principal is not liable for an act,
error or omission by an agent or subagent of the principal
arising out of an agency relationship established under ORS
696.805, 696.810, 696.815 or 696.820:
(a) Unless the principal participates in or authorizes the act,
error or omission; and
(b) Only to the extent that:
(A) The principal benefited from the act, error or omission;
and
Enrolled Senate Bill 446 (SB 446-A) Page 38
(B) A court or arbitrator determines that it is highly probable
that the claimant would be unable to enforce a judgment against
the agent or subagent of the principal.
(2) A real estate licensee is not liable for an act, error or
omission by a principal or an agent of a principal that is not
related to the licensee unless the licensee participates in or
authorizes the act, error or omission. This subsection does not
limit the liability of a principal real estate broker for an act,
error or omission by a real estate licensee under the principal
broker's supervision.
(3) Unless acknowledged by a principal in writing, facts known
by an agent or subagent of the principal may not be imputed to
the principal if the principal does not have actual knowledge.
(4) Unless acknowledged by a real estate licensee in writing,
facts known by a principal or an agent of the principal may not
be imputed to the licensee if the licensee does not have actual
knowledge. This subsection does not limit the knowledge imputed
to a principal real estate broker of facts known by a real estate
licensee under the supervision of the principal real estate
broker. + }
SECTION 53. ORS 59.720 is amended to read:
59.720. The provisions of ORS 59.710 to 59.830 shall not apply
to any contract, agreement, sale, purchase, lease, conveyance or
mortgage pertaining to real estate situated in this state, nor to
the business of real estate brokers { - and salesmen - } { +
or principal real estate brokers + }, as defined in ORS 696.010,
in so far as such business pertains to real estate located in
this state.
SECTION 54. ORS 94.977 is amended to read:
94.977. (1) Unless the transaction is exempt under ORS 94.962,
it is unlawful for any person to act as a salesperson or
membership camping contract broker in this state without first
registering as a salesperson or membership camping contract
broker as provided in ORS 94.980. Persons licensed as real estate
brokers or { - real estate salespersons - } { + principal
real estate brokers + } under ORS chapter 696 are exempt from
registration under this section.
(2) A violation of this section is a Class A misdemeanor.
SECTION 55. ORS 657.085 is amended to read:
657.085. 'Employment' does not include service performed by any
person as a newspaper advertising salesperson, real estate
broker, { - real estate salesperson, real estate agent, - }
{ + principal real estate broker, + } insurance agent,
insurance solicitor or securities salesperson or agent to the
extent that the person is compensated by commission.
SECTION 56. ORS 659.430 is amended to read:
659.430. (1) { - No - } { + A + } person, because of a
disability of a purchaser, lessee or renter, a disability of a
person residing in or intending to reside in a dwelling after it
is sold, rented or made available or a disability of any person
associated with a purchaser, lessee or renter, shall { + not + }
discriminate by:
(a) Refusing to sell, lease, rent or otherwise make available
any real property to a purchaser, lessee or renter;
(b) Expelling a purchaser, lessee or renter;
(c) Making any distinction or restriction against a purchaser,
lessee or renter in the price, terms, conditions or privileges
relating to the sale, rental, lease or occupancy of real property
or the furnishing of any facilities or services in connection
therewith; or
Enrolled Senate Bill 446 (SB 446-A) Page 39
(d) Attempting to discourage the sale, rental or lease of any
real property.
(2) For purposes of this subsection, discrimination includes:
(a) A refusal to permit, at the expense of the disabled person,
reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary to
afford such person full enjoyment of the premises, except that,
in the case of a rental, the landlord may, { - where - } { +
when + } it is reasonable to do so, condition permission for a
modification on the renter agreeing to restore the interior of
the premises to the condition that existed before the
modification, reasonable wear and tear excepted; or
(b) A refusal to make reasonable accommodations in rules,
policies, practices or services when such accommodations may be
necessary to afford such person equal opportunity to use and
enjoy a dwelling.
(3) { - No - } { + A + } person shall { + not + } publish,
circulate, issue or display or cause to be published, circulated,
issued or displayed any communication, notice, advertisement, or
sign of any kind relating to the sale, rental or leasing of real
property which indicates any preference, limitation,
specification or discrimination against a disabled person.
(4) { - No - } { + A + } person or other entity whose
business includes engaging in residential real estate related
transactions, as defined in ORS 659.033 (2)(b), shall { +
not + } discriminate against any person in making available such
a transaction, or in the terms or conditions of such a
transaction, because of a disability.
(5) { - No - } { + A + } real estate broker or
{ - salesperson - } { + principal real estate broker + }
shall { + not + } accept or retain a listing of real property
for sale, lease or rental with an understanding that the
purchaser, lessee or renter may be discriminated against solely
because a person is a disabled person.
(6) { - No - } { + A + } person shall { + not + } assist,
induce, incite or coerce another person to permit an act or
engage in a practice that violates this section.
(7) { - No - } { + A + } person shall { + not + } coerce,
intimidate, threaten or interfere with any person in the exercise
or enjoyment of, or on account of having exercised or enjoyed, or
on account of having aided or encouraged any other person in the
exercise or enjoyment of, any right granted or protected by this
section.
(8) { - No - } { + A + } person shall { + not + }, for
profit, induce or attempt to induce any other person to sell or
rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a disabled person or
persons.
(9) Any violation of this section is an unlawful practice.
SECTION 57. ORS 9.166 is amended to read:
9.166. (1) If the board has reason to believe that a person is
practicing law without a license, the board may maintain a suit
for injunctive relief in the name of the Oregon State Bar against
any person violating ORS 9.160. The court shall enjoin any person
violating ORS 9.160 from practicing law without a license. Any
person who has been so enjoined may be punished for contempt by
the court issuing the injunction. An injunction may be issued
without proof of actual damage sustained by any person. The court
may also order restitution to any victim of any person violating
ORS 9.160. The prevailing party may recover its costs and
Enrolled Senate Bill 446 (SB 446-A) Page 40
attorney fees in any suit for injunctive relief brought under
this section in which the board is the plaintiff.
(2) A person licensed under { - ORS 696.025 - } { + section
9 of this 2001 Act + } acting in the scope of the person's
license to arrange a real estate transaction, including the sale,
purchase, exchange, option or lease coupled with an option to
purchase, lease for a term of one year or longer or rental of
real property, is not engaged in the practice of law in violation
of ORS 9.160.
SECTION 58. ORS 93.265 is amended to read:
93.265. (1) A { - licensed - } real estate property manager,
as
{ - described - } { + defined + } in ORS { - 696.025 - }
{ + 696.010 + }, may request notice of any pending action,
claim, lien or proceeding relating to a parcel of real property
by recording in the county clerk's office of the county in which
any portion of the real property is situated a request for any
notice required by law to be provided to the owner.
(2) A request submitted as allowed under subsection (1) of this
section shall include the name and address of the property
manager, the address and legal description of the property in
question, the signature and real estate license number of the
requester and the date of the request. The request for
notification shall be valid for one year from filing.
(3) Compliance with subsection (1) of this section shall be
deemed adequate upon mailing, by first class mail with postage
prepaid, to the address provided in the form required under
subsection (2) of this section.
(4) The county assessor of the county in which the notice is
recorded shall note on the tax roll, prepared pursuant to ORS
chapter 311, the filing made under subsection (1) of this
section.
(5) No request, statement or notation filed under subsection
(1) of this section shall affect title to the property or be
deemed notice to any person that any person so recording the
request has any right, title, interest in, lien or charge upon
the property referred to in the request for notice.
SECTION 59. ORS 305.230 is amended to read:
305.230. Notwithstanding ORS 9.320:
(1) Any person who is duly qualified to practice law or public
accountancy in this state or the authorized employee of a
taxpayer who is regularly employed by the taxpayer in tax matters
may represent the taxpayer before a tax court magistrate or the
Department of Revenue in any conference or proceeding with
respect to the administration of any tax.
(2) Any person who is duly licensed by the State Board of Tax
Service Examiners or who is exempt from such licensing
requirement as provided for and limited by ORS 673.610 may
represent a taxpayer before a tax court magistrate or the
department in any conference or proceeding with respect to the
administration of any tax on or measured by net income.
(3) Any shareholder of an S corporation, as defined in section
1361 of the Internal Revenue Code, as amended and in effect on
December 31, 1998, may represent the corporation in any
proceeding before a tax court magistrate or the department in the
same manner as if the shareholder were a partner and the S
corporation were a partnership. The S corporation must designate
in writing a tax matters shareholder authorized to represent the
S corporation.
Enrolled Senate Bill 446 (SB 446-A) Page 41
(4) Any person who is licensed as a real estate broker { + or
principal real estate broker + } under { - ORS 696.025 - }
{ + section 9 of this 2001 Act + } or is a state certified
appraiser or state licensed appraiser under ORS 674.310 or is a
registered appraiser under ORS 308.010 may represent a taxpayer
before a tax court magistrate or the department in any conference
or proceeding with respect to the administration of any ad
valorem property tax.
(5) A general partner who has been designated by members of a
partnership as their tax matters partner under ORS 305.242 may
represent those partners in any conference or proceeding with
respect to the administration of any tax on or measured by net
income.
(6) In a small claims procedure, a taxpayer may be represented
by any of the persons described in subsections (1) to (5) of this
section or by any other person permitted by the tax court.
(7) No person shall be recognized as representing a taxpayer
pursuant to this section unless there is first filed with the
magistrate or department a written authorization, or unless it
appears to the satisfaction of the magistrate or department that
the representative does in fact have authority to represent the
taxpayer. A person recognized as an authorized representative
under rules or procedures adopted by the tax court shall be
considered an authorized representative by the department.
(8) A taxpayer represented by someone other than an attorney is
bound by all things done by the authorized representative, and
may not thereafter claim any proceeding was legally defective
because the taxpayer was not represented by an attorney.
(9) Prior to the holding of a conference or proceeding before
the tax court magistrate or department, written notice shall be
given by the magistrate or department to the taxpayer of the
provisions of subsections (6) and (8) of this section.
SECTION 60. ORS 309.100 is amended to read:
309.100. (1) The owner or an owner of any taxable property or
any person who holds an interest in the property that obligates
the person to pay taxes imposed on the property, may petition the
board of property tax appeals for relief as authorized under ORS
309.026. As used in this subsection, an interest that obligates
the person to pay taxes includes a contract, lease or other
intervening instrumentality.
(2) Petitions filed under this section shall be filed with the
clerk of the board during the period following the date the tax
statements are mailed for the current tax year and ending
December 31.
(3) Each petition shall:
(a) Be made in writing.
(b) State the facts and the grounds upon which the petition is
made.
(c) Be signed and verified by the oath of a person described in
subsection (1) or (4) of this section.
(d) State the address to which notice of the action of the
board shall be sent. The notice may be sent to the address of the
owner, the person in whose name the property is assessed or to
the address of the person described in subsection (4) of this
section.
(e) State if the petitioner or a representative desires to
appear at a hearing before the board.
(4)(a) The following persons may sign a petition and appear
before the board on behalf of a person described in subsection
(1) of this section:
Enrolled Senate Bill 446 (SB 446-A) Page 42
(A) A relative, as defined by rule adopted by the Department of
Revenue, of an owner of the property.
(B) A person duly qualified to practice law or public
accountancy in this state.
(C) A legal guardian or conservator who is acting on behalf of
an owner of the property.
(D) A { - licensed - } real estate broker { + or principal
real estate broker licensed + } under { - ORS 696.025 - } { +
section 9 of this 2001 Act + }.
(E) A state certified appraiser or a state licensed appraiser
under ORS 674.310 or a registered appraiser under ORS 308.010.
(F) The lessee of the property.
(b) A petition signed by a person described in this subsection,
other than a legal guardian or conservator of a property owner or
a person duly qualified to practice law in this state, shall
include written and signed authorization from the owner or other
person described in subsection (1) of this section for the person
to act on their behalf.
(c) In the case of a petition signed by a legal guardian or
conservator, the board may request the guardian or conservator to
authenticate the guardianship or conservatorship.
(5) If the petitioner has requested a hearing before the board,
the board shall give such petitioner at least five days' written
notice of the time and place to appear. If the board denies any
petition upon the grounds that it does not meet the requirements
of subsection (3) of this section, it shall issue a written order
rejecting the petition and set forth in the order the reasons the
board considered the petition to be defective.
(6) Notwithstanding ORS 9.320, the owner or other person
described in subsection (1) of this section may appear and
represent himself or herself at the hearing before the board, or
may be represented at the hearing by any authorized person
described in subsection (4) of this section.
SECTION 61. ORS 316.209 is amended to read:
316.209. (1) For purposes of ORS 316.162 to 316.212, in the
case of services performed as a qualified real estate
{ - agent - } { + broker, qualified principal real estate
broker + } or as a direct seller:
(a) The individual performing the services shall not be treated
as an employee; and
(b) The person for whom the services are performed shall not be
treated as an employer.
(2) As used in this section, 'qualified real estate
{ - agent - } { + broker' or 'qualified principal real estate
broker + } ' means any individual if:
(a) The individual is a real estate licensee under ORS 696.010
to 696.490, 696.600 to 696.627, 696.800 to 696.855 and 696.995;
(b) Substantially all of the remuneration (whether or not paid
in cash) for the services performed by the individual as a real
estate licensee is directly related to sales or other output
(including the performance of services) rather than to the number
of hours worked; and
(c) The services performed by the individual are performed
pursuant to a written contract between the individual and the
real estate broker, { + principal real estate broker or + } real
estate appraiser { - or real estate organization - } for whom
the services are performed and the contract provides that the
individual will not be treated as an employee with respect to the
services for Oregon tax purposes.
Enrolled Senate Bill 446 (SB 446-A) Page 43
(3) As used in this section, 'direct seller' means any
individual if:
(a) The individual is:
(A) Engaged in the trade or business of selling, or soliciting
the sale of, consumer products to any buyer on a buy-sell basis,
a deposit-commission basis or any similar basis, which the
Department of Revenue prescribes by rule, for resale by the buyer
or any other person, in the home or otherwise than in a permanent
retail establishment; or
(B) Engaged in the trade or business of selling, or soliciting
the sale of, consumer products in the home or otherwise than in a
permanent retail establishment;
(b) Substantially all the remuneration (whether or not paid in
cash) for the performance of the services described in paragraph
(a) of this subsection is directly related to sales or other
output (including the performance of services) rather than to the
number of hours worked; and
(c) The services performed by the individual are performed
pursuant to a written contract between the individual and the
person for whom the services are performed and the contract
provides that the individual will not be treated as an employee
with respect to the services for Oregon tax purposes.
SECTION 62. ORS 674.100 is amended to read:
674.100. (1)(a) No person shall engage in, carry on, advertise
or purport to engage in or carry on real estate appraisal
activity within this state without first obtaining certification
or licensure as provided for in ORS 674.310.
(b) Real estate appraisal activity is the preparation,
completion and issuance of an opinion as to the value on a given
date or at a given time of real property or any interest in real
property, whether such activity is performed in connection with a
federally related transaction or is not performed in connection
with a federally related transaction. Notwithstanding any other
provision of law, a state certified appraiser or a state licensed
appraiser:
(A) Is not required to be licensed under { - ORS 696.025 - }
{ + section 9 of this 2001 Act + } to perform any real estate
appraisal activity or any other activity that constitutes the
giving of an opinion as to the value of real property or any
interest in real property; and
(B) Is not subject to regulation under ORS 696.010 to 696.495
and 696.600 to 696.995 in connection with the performance of any
real estate appraisal activity or the performance of any activity
which constitutes the giving of an opinion as to the value of
real estate or any interest in real estate.
(2) Real estate appraisal activity excludes any activity that
is not performed in connection with a federally related
transaction and that:
(a) Is performed by a nonlicensed regular full-time employee of
a single owner of real estate, if the activity involves the real
estate of the employer and is incidental to the employee's
normal, nonreal estate activities;
(b) Is performed by a nonlicensed regular full-time employee
whose activity involves the real estate of the employer, when
such activity is the employee's principal activity, but the
employer's principal activity or business is not the appraisal of
real estate;
(c) Is performed by any attorney at law rendering services in
the performance of duties as an attorney at law;
Enrolled Senate Bill 446 (SB 446-A) Page 44
(d) Is performed by any registered geologist, registered
professional engineer or architect rendering services as a
registered geologist, registered professional engineer or
architect;
(e) Is performed by a certified public accountant rendering
services as a certified public accountant;
(f) Is performed by a mortgage banker rendering services as a
mortgage banker;
(g) Constitutes a letter opinion or a competitive market
analysis as those terms are defined in ORS 696.010 that, by
administrative or judicial order or subpoena, is compelled from a
person licensed to engage in real estate activity under { - the
provisions of ORS 696.007 to 696.495, 696.600 to 696.627 and
696.800 to 696.855 - } { + section 9 of this 2001 Act + };
(h) Is performed by any salaried employee of the State of
Oregon or any of its political subdivisions while engaged in the
performance of the duties of such employee;
(i) Is limited to analyzing or advising of permissible land use
alternatives, environmental impact, building and use permit
procedures or demographic market studies, if the performance of
such activities does not involve the rendering of an opinion as
to the value of the real estate in question;
(j) Is performed by a professional forester appraising or
valuing timber, timberland or both as part of services performed
as a private consultant in forest management, but only if, in the
case of timberland, the appraisal or valuation is limited to the
use of the land as forestland;
(k) Is limited to the giving of an opinion in any
administrative or judicial proceeding regarding the value of real
estate for taxation;
(L) Is limited to a person not licensed under ORS chapter 696
who is giving an opinion regarding the value of real estate if
the person's business is not the appraisal, selling or listing of
real estate, and such activity is performed without compensation.
This paragraph does not apply to a person conducting
transactional negotiations on behalf of another person for
transfer of an interest in real property; or
(m) Is limited to a person not licensed under ORS chapter 696
who is transferring or acquiring an interest in real estate.
(3)(a) 'Real estate appraisal activity' does not include an
analysis, evaluation, opinion, conclusion, notation or
compilation of data prepared by a financial institution or
affiliate, a consumer finance company licensed under ORS chapter
725, or by an insurance company or affiliate, made for internal
use only by the financial institution or affiliate, consumer
finance company or by the insurance company or affiliate,
concerning an interest in real estate for ownership or collateral
purposes by the financial institution or affiliate, by the
consumer finance company licensed under ORS chapter 725, or by
the insurance company or affiliate. Nothing in this subsection
shall be construed to excuse a financial institution or affiliate
from complying with the provisions of Title XI of the federal
Financial Institutions Reform, Recovery and Enforcement Act of
1989 (12 U.S.C. 3310 et seq.).
(b) As used in this section, 'evaluation' means a study of the
nature, quality or utility of a parcel of real estate or
interests in, or aspects of, real property in which a value
estimate is not necessarily required.
(4)(a) As used in this section, 'purport to engage in or carry
on real estate appraisal activity' means the display of a card,
Enrolled Senate Bill 446 (SB 446-A) Page 45
sign, advertisement or other printed, engraved or written
instrument bearing the person's name in conjunction with the term
' appraiser,' 'licensed appraiser,' 'certified appraiser' or '
appraisal' or any oral statement or representation of
certification or licensure by the Appraiser Certification and
Licensure Board made by a person.
(b) Each display or statement described in paragraph (a) of
this subsection by a person not licensed or certified by the
board is a separate violation under ORS 674.990.
(c) In any proceeding under ORS 674.990, a display or statement
described in paragraph (a) of this subsection shall be considered
prima facie evidence that the person named in the display or
making the statement purports to engage in or carry on real
estate appraisal activity.
SECTION 63. ORS 696.232 is amended to read:
696.232. (1) An employee or officer of the Real Estate Agency
licensed as a real estate licensee under this chapter shall
return the employee's or officer's license to the agency at the
time of
{ - commencement of the - } { + commencing + } employment.
The agency shall hold the license as { - a suspended
license - } { + an active license held in suspense + }. At the
termination of an employee's or officer's employment, the license
may be { - reissued - } { + returned to the licensee + } as
an active or inactive license. The license shall be
{ - reissued - } { + returned to the licensee + } without
payment of further fee and shall expire on the date on which it
would have expired if the license had not been
{ - suspended - } { + held in suspense + }.
(2) Except as stated in subsection (1) of this section, the
{ - reissuance - } { + return + } of the license { + to the
licensee + } and all renewals shall be subject to the provisions
of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855
and 696.995.
SECTION 64. ORS 696.445 is amended to read:
696.445. (1) Pursuant to ORS 696.385 (2), the Real Estate
Agency shall provide for the advancement of education and
research in connection with the educational requirements for the
securing of licenses for real estate licensees under ORS 696.010
to 696.490, 696.600 to 696.627, 696.800 to 696.855 and 696.995.
(2) The Real Estate Commissioner may assign and reassign staff
in the agency to perform such duties as the commissioner
considers necessary to carry out subsection (1) of this section,
including but not limited to the preparation and distribution of
a periodic publication to be known as the Oregon Real Estate News
Journal and the preparation and publication of other printed
matter of an educational nature for the benefit of real estate
licensees.
(3) The commissioner shall publish in the Oregon Real Estate
News Journal the names and addresses of all applicants for real
estate or escrow licenses whose licenses have been refused, of
real estate licensees who have been reprimanded, of real estate
and escrow licensees whose licenses have been suspended or
revoked and of { + real estate and + } escrow licensees who have
been assessed civil penalties. Each such publication shall
include a brief description of the situation involved and the
grounds for the commissioner's action.
SECTION 65. ORS 696.600 is amended to read:
696.600. As used in ORS 696.392, 696.600 to 696.627 and
696.995:
Enrolled Senate Bill 446 (SB 446-A) Page 46
(1) 'Employee' includes an individual who has an independent
contractual relationship with a real estate marketing
organization and performs real estate marketing activity.
(2) 'Real estate marketing activity' means procuring or
offering to procure prospects to purchase, sell, lease or rent
real estate by telemarketing, mail or otherwise.
(3) 'Real estate marketing organization' means any person,
including a partnership, association, corporation, limited
liability company or other organization, other than a real estate
marketing employee, that engages in real estate marketing
activity and is licensed under ORS 696.606.
(4)(a) 'Real estate marketing employee' means an individual who
receives compensation from a real estate marketing organization
for performing real estate marketing activity.
(b) 'Real estate marketing employee' does not include a person
licensed under { - ORS 696.025 (1) to (4) or (6) - } { +
section 9 of this 2001 Act + }.
SECTION 66. ORS 696.603 is amended to read:
696.603. (1) { - No - } { + A + } person may { + not + }
engage in real estate marketing activity unless that person is:
(a) Licensed under ORS 696.606;
(b) Licensed under { - ORS 696.025 (1) to (4) or (6) - }
{ + section 9 of this 2001 Act + }; or
(c) Registered by a person licensed under ORS 696.606.
(2) No person may employ an individual as a real estate
marketing employee unless the person registers the individual
with the Real Estate Commissioner as the employee of the real
estate marketing organization before the individual commences
real estate marketing activity.
(3) This section applies to persons who:
(a) Initiate real estate marketing activity in this state; or
(b) Initiate real estate marketing activity in another state
that includes contacting persons in this state.
(4) One act or transaction of real estate marketing activity is
sufficient to constitute engaging in real estate marketing
activity within the meaning of this section.
SECTION 67. ORS 696.621 is amended to read:
696.621. The Real Estate Marketing Account is established as an
account in the General Fund of the State Treasury. All moneys
received by the Real Estate Agency pursuant to ORS
{ - 696.010, - } 696.392, 696.600 to 696.627 and 696.995 shall
be paid into the State Treasury and credited to the account. All
moneys in the account are appropriated continuously to the Real
Estate Agency to carry out the provisions of ORS
{ - 696.010, - } 696.392, 696.600 to 696.627 and 696.995.
SECTION 68. ORS 696.990 is amended to read:
696.990. (1) Violation of any provision of ORS 696.010 to
696.165, { - 696.169, - } 696.180 to 696.226, 696.241 to
696.375, 696.392, 696.395 to 696.435, 696.490, 696.600 to 696.730
and 696.995 is a Class A misdemeanor.
(2) Any officer, director or shareholder or agent of a
corporation, or member or agent of a partnership or association,
who personally participates in or is an accessory to any
violation of ORS 696.010 to 696.165, { - 696.169, - } 696.180
to 696.226, 696.241 to 696.375, 696.392, 696.395 to 696.435,
696.490, 696.600 to 696.730 and 696.995 by the partnership,
association or corporation, is subject to the penalties
prescribed in subsection (1) of this section.
(3) A violation of any one of the provisions of ORS 696.505 to
696.590 is a Class A misdemeanor.
Enrolled Senate Bill 446 (SB 446-A) Page 47
(4) Any person who violates ORS 696.020 (1) may be required by
the commissioner to forfeit and pay to the General Fund of the
State Treasury a civil penalty in an amount determined by the
commissioner of:
(a) Not less than $100 nor more than $500 for the first offense
of unlicensed professional real estate activity; and
(b) Not less than $500 nor more than $1,000 for the second and
subsequent offenses of unlicensed professional real estate
activity.
(5) In addition to the civil penalty set forth in subsection
(4) of this section, any person who violates ORS 696.020 may be
required by the commissioner to forfeit and pay to the General
Fund of the State Treasury a civil penalty in an amount
determined by the commissioner but not to exceed the amount by
which such person profited in any transaction which violates ORS
696.020.
(6) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(7) The civil penalty provisions of subsections (4) and (5) of
this section are in addition to and not in lieu of the criminal
penalties for unlicensed professional real estate activity in
subsections (1) and (2) of this section.
SECTION 69. ORS 105.480 is amended to read:
105.480. (1) The representations contained in a seller's
disclosure statement and in any amendment to the disclosure
statement are the representations of the seller only, and no
financial institution that may have made or that may make a loan
pertaining to the property covered by a seller's disclosure
statement, or that may have or take a security interest in the
property covered by a seller's disclosure statement, is bound by
or has any liability with respect to any representation,
misrepresentation, omission, error or inaccuracy contained in
another party's disclosure statement required by ORS 105.465 or
any amendment to the disclosure statement.
(2) For purposes of ORS 105.465 to 105.490, { - 696.301 and
696.870, - } 'financial institution' has the meaning given that
term in ORS 706.008 and also includes mortgage bankers and
mortgage brokers as those terms are defined in ORS 59.840, and
consumer finance companies licensed under ORS chapter 725.
SECTION 70. ORS 443.738 is amended to read:
443.738. (1) Except as provided in subsection (3) of this
section, all providers, resident managers and substitute
caregivers for adult foster homes shall satisfactorily meet all
educational requirements established by the department. After
consultation with representatives of providers, educators,
residents' advocates and the Long Term Care Ombudsman, the
department shall adopt by rule standards governing the
educational requirements. The rules shall require that no person
may provide care to any resident prior to acquiring education or
supervised training designed to impart the basic knowledge and
skills necessary to maintain the health, safety and welfare of
the resident. Each provider shall document compliance with the
educational requirements for persons subject thereto.
(2) The rules required under subsection (1) of this section
shall include but need not be limited to the following:
(a) A requirement that, before being licensed, a provider
successfully completes training that satisfies a defined
curriculum, including demonstrations and practice in physical
caregiving, screening for care and service needs, appropriate
behavior towards residents with physical, cognitive and mental
Enrolled Senate Bill 446 (SB 446-A) Page 48
disabilities and issues related to architectural accessibility;
and
(b) A requirement that a provider pass a test before being
licensed or becoming a resident manager. The test shall evaluate
the ability to understand and respond appropriately to emergency
situations, changes in medical conditions, physicians' orders and
professional instructions, nutritional needs, residents'
preferences and conflicts.
(3) After consultation with representatives of providers,
educators, residents' advocates and the Long Term Care Ombudsman,
the department may adopt by rule exceptions to the training
requirements of subsections (1) and (2) of this section for
persons who are appropriately licensed medical care professionals
in Oregon or who possess sufficient education, training or
experience to warrant an exception. The department shall not make
any exceptions to the testing requirements.
(4) The department may permit a person who has not completed
the training or passed the test required in subsection (2) of
this section to act as a resident manager until the training and
testing are completed or for 60 days, whichever is shorter, if
the department determines that an unexpected and urgent staffing
need exists. The licensed provider must notify the department of
the situation and demonstrate that the provider is unable to find
a qualified resident manager, that the person has met the
requirements for a substitute caregiver for the adult foster home
and that the provider will provide adequate supervision.
(5) Providers shall serve three nutritionally balanced meals to
residents each day. A menu for the meals for the coming week
shall be prepared and posted weekly.
(6) Providers shall make available at least six hours of
activities each week which are of interest to the residents, not
including television or movies. The department shall make
information about resources for activities available to providers
upon request. Providers or substitute caregivers shall be
directly involved with residents on a daily basis.
(7) Providers shall give at least 30 days' written notice to
the residents, and to the legal representative, guardian or
conservator of any resident, before selling, leasing or
transferring the adult foster home business or the real property
on which the adult foster home is located. Providers shall inform
real estate { - agents - } { + licensees + }, prospective
buyers, lessees and transferees in all written communications
that the license to operate an adult foster home is not
transferable and shall refer them to the department for
information about licensing.
(8) If a resident dies, or leaves an adult foster home for
medical reasons and indicates in writing the intent to not
return, the provider shall not charge the resident for more than
15 days or the time specified in the provider contract, whichever
is less, after the resident has left the adult foster home. The
provider has an affirmative duty to take reasonable actions to
mitigate the damages by accepting a new resident. However, if a
resident dies or leaves an adult foster home due to neglect or
abuse by the provider or due to conditions of imminent danger to
life, health or safety, the provider shall not charge the
resident beyond the resident's last day in the home. The provider
shall refund any advance payments within 30 days after the
resident dies or leaves the adult foster home.
(9) Chemical and physical restraints may be used only after
considering all other alternatives and only when required to
Enrolled Senate Bill 446 (SB 446-A) Page 49
treat a resident's medical symptoms or to maximize a resident's
physical functioning. Restraints may not be used for discipline
of a resident or for the convenience of the adult foster home.
Restraints may be used only as follows:
(a) Psychoactive medications may be used only pursuant to a
prescription that specifies the circumstances, dosage and
duration of use.
(b) Physical restraints may be used only pursuant to a
qualified practitioner's order that specifies the type,
circumstances and duration of use in accordance with rules
adopted by the department. The rules adopted by the department
relating to physical restraints shall include standards for use
and training.
(10) If the physical characteristics of the adult foster home
do not encourage contact between caregivers and residents and
among residents, the provider shall demonstrate how regular
positive contact will occur. Providers shall not place residents
who are unable to walk without assistance in a basement,
split-level, second story or other area that does not have an
exit at ground level. Nonambulatory residents shall be given
first floor rooms.
(11) The provider shall not transfer or discharge a resident
from an adult foster home unless the transfer or discharge is
necessary for medical reasons, for the welfare of the resident or
for the welfare of other residents, or due to nonpayment. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
(a) The provider shall give the resident and the resident's
legal representative, guardian or conservator written notice at
least 30 days prior to the proposed transfer or discharge, except
in a medical emergency including but not limited to a resident's
experiencing an increase in level of care needs or engaging in
behavior that poses an imminent danger to self or others. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
(b) The resident shall have the right to an administrative
hearing prior to an involuntary transfer or discharge. If the
resident is being transferred or discharged for a medical
emergency, or to protect the welfare of the resident or other
residents, as defined by rule, the hearing must be held within
seven days of the transfer or discharge. The provider shall hold
a space available for the resident pending receipt of an
administrative order. ORS 441.605 (4) and the rules thereunder
governing transfer notices and hearings for residents of long
term care facilities shall apply to adult foster homes.
(12) The provider shall not include any illegal or
unenforceable provision in a contract with a resident and shall
not ask or require a resident to waive any of the resident's
rights.
(13) Any lessor of a building in which an adult foster home is
located shall not interfere with the admission, discharge or
transfer of any resident in the adult foster home unless the
lessor is a provider or coprovider on the license.
SECTION 71. ORS 656.037 is amended to read:
656.037. A person contracting to pay remuneration for
professional real estate activity as defined in ORS chapter 696
to a qualified real estate { - agent - } { + broker or
qualified principal real estate broker + }, as defined in ORS
316.209, is not an employer of that qualified { - real estate
agent - } { + broker + } under the Workers' Compensation Law. A
Enrolled Senate Bill 446 (SB 446-A) Page 50
qualified real estate { - agent - } { + broker or qualified
principal real estate broker + } is not entitled to benefits
under the Workers' Compensation Law unless such individual has
obtained coverage for such benefits pursuant to ORS 656.128.
SECTION 72. ORS 696.525 is amended to read:
696.525. (1)(a) At the time of filing an application for an
escrow agent's license, the applicant shall deposit with the Real
Estate Commissioner a corporate surety bond running to the State
of Oregon, executed by a surety company satisfactory to the
commissioner, in the amount as provided in paragraph (b) of this
subsection.
(b) If the total annual receipts of client trust funds, as
reported in the required annual report of the escrow agent, are:
(A) Less than $100 million, the bond or deposit shall be
$25,000.
(B) $100 million but less than $300 million, the bond or
deposit shall be $50,000.
(C) $300 million but less than $1 billion, the bond or deposit
shall be $75,000.
(D) $1 billion or more, the bond or deposit shall be $100,000.
(c) The provisions of the corporate surety bond shall be in the
form substantially as follows:
_________________________________________________________________
Know All Persons by These Presents, That we, ____ as principal,
and ____, a corporation, qualified and authorized to do business
in the State of Oregon as surety, are held and firmly bound unto
the State of Oregon for the use and benefit of any interested
person, in the sum of $____, lawful money of the United States of
America, to be paid to the State of Oregon for the use and
benefit aforesaid, for which payment well and truly to be made,
we bind ourselves, our heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these
presents.
The condition of the above obligation is such that: Whereas the
above-named principal has made application for registration as an
escrow agent within the meaning of ORS 696.505 to 696.590 and is
required by the provisions of ORS 696.505 to 696.590 to furnish a
bond in the sum above named, conditioned as herein set forth:
Now, therefore, if the principal, the principal's agents and
employees, shall strictly, honestly and faithfully comply with
the provisions of ORS 696.505 to 696.590, and shall pay all
actual damages suffered by any person by reason of the violation
of any of the provisions of ORS 696.505 to 696.590, now or
hereafter enacted, or by reason of any fraud, dishonesty,
misrepresentation or concealment of material facts growing out of
any transaction governed by the provisions of ORS 696.505 to
696.590, then this obligation shall be void; otherwise to remain
in full force and effect.
This bond shall become effective on the __ day of ____, 2_, and
shall remain in force until the surety is released from liability
by the commissioner, or until this bond is canceled by the
surety. The surety may cancel this bond and be relieved of
further liability hereunder by giving 30 days' written notice to
the principal and to the commissioner.
This bond shall be one continuing obligation, and the liability
of the surety for the aggregate of any and all claims which may
arise hereunder shall in no event exceed the amount of the
penalty hereof.
In witness whereof, the seal and signature of the principal
hereto is affixed, and the corporate seal and the name of the
Enrolled Senate Bill 446 (SB 446-A) Page 51
surety hereto is affixed and attested by its duly authorized
officers at _______, Oregon, this __ day of ______, 2__.
____________ (Seal)
Principal
____________ (Seal)
Surety
By ____________
_________________________________________________________________
(2) The surety bond required in subsection (1) of this section,
or deposit required in ORS 696.527, shall entitle the escrow
agent, when properly licensed, to operate from one business
location. { - In order to operate from additional office
locations, a branch office license shall first be obtained. - }
The escrow agent { + , when registering a branch office, + }
shall { - accompany each application for a branch office
license with - } { + provide + } evidence that the liability
amount of the required surety bond { - , - } or the amount of
deposit { + , + } or combination thereof { + , + } has been
increased in a sum equal to $10,000 for each additional business
location.
SECTION 73. ORS 696.880 is amended to read:
696.880. Nothing in ORS 181.586, 181.587, 181.588, 181.589,
696.301, 696.805, 696.810, 696.815 or 696.855 creates an
obligation on the part of a { - real estate agent - }
{ + person + } licensed under this chapter to disclose to a
potential purchaser of residential property that a convicted sex
offender registered under ORS 181.595, 181.596 or 181.597 resides
in the area.
SECTION 74. ORS 105.465 is amended to read:
105.465. (1) The provisions of ORS 105.465 to 105.490, 696.301
and 696.870:
(a) Apply to the real property described in subparagraphs (A)
to (D) of this paragraph unless the buyer indicates to the
seller, which indication shall be conclusive, that the buyer will
use the real property for purposes other than a residence for the
buyer or the buyer's spouse, parent or child:
(A) Real property consisting of or improved by one to four
dwelling units;
(B) A condominium unit as defined in ORS 100.005 and not
subject to disclosure under ORS 100.705;
(C) A timeshare property as defined in ORS 94.803 and not
subject to disclosure under ORS 94.829; and
(D) A manufactured dwelling, as defined in ORS 446.003, that is
owned by the same person who owns the land upon which the
manufactured dwelling is situated.
(b) Do not apply to a leasehold in real property.
(2) A seller shall deliver one of the following to each buyer
who makes a written offer to purchase real property in this
state:
(a) A written disclaimer that the seller makes no
representations or warranties as to the condition of the real
property or any improvement thereon and that the buyer will be
purchasing the property 'as is,' that is, with all defects, if
any; or
(b) A seller's property disclosure statement in substantially
the following form:
_________________________________________________________________
SELLER'S PROPERTY DISCLOSURE
STATEMENT
Enrolled Senate Bill 446 (SB 446-A) Page 52
(NOT A WARRANTY)
(105.465)
INSTRUCTIONS TO THE SELLER
Please complete the following form. Do not leave any spaces blank
unless the question clearly does not apply to the property.
Please refer to the line number(s) of the question(s) when you
provide your explanation(s). For your protection you must date
and sign each page of this disclosure statement and each
attachment.
NOTICE TO THE BUYER
THE FOLLOWING REPRESENTATIONS ARE MADE BY THE SELLER(S),
CONCERNING THE CONDITION OF THE PROPERTY LOCATED AT ______ ('THE
PROPERTY').
DISCLOSURES CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON
THE BASIS OF SELLER'S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE
TIME OF DISCLOSURE. YOU HAVE FIVE BUSINESS DAYS FROM THE SELLER'S
DELIVERY OF THIS SELLER'S DISCLOSURE STATEMENT TO REVOKE YOUR
OFFER BY DELIVERING YOUR SEPARATE SIGNED WRITTEN STATEMENT OF
REVOCATION TO THE SELLER, UNLESS YOU WAIVE THIS RIGHT AT OR PRIOR
TO ENTERING INTO A SALE AGREEMENT.
FOR A MORE COMPREHENSIVE EXAMINATION OF THE SPECIFIC CONDITION OF
THIS PROPERTY YOU ARE ADVISED TO OBTAIN AND PAY FOR THE SERVICES
OF A QUALIFIED SPECIALIST TO INSPECT THE PROPERTY ON YOUR BEHALF,
FOR EXAMPLE, ARCHITECTS, ENGINEERS, PLUMBERS, ELECTRICIANS,
ROOFERS, BUILDING INSPECTORS, OR PEST AND DRY ROT INSPECTORS.
Seller___ is/___ is not occupying the property.
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
I. SELLER'S REPRESENTATIONS:
The following are representations
made by the seller and are not the
representations of any financial
institution that may have made or
may make a loan pertaining to
the property, or that may have or
take a security interest in the
property.
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
1.TITLE
µ ºYesµ ºNoA. Do you have legal
authority to sell the
Enrolled Senate Bill 446 (SB 446-A) Page 53
property?
µ ºYesµ ºN*B. To your knowledge, is
title to the property
subject to any of the
following:
(First right of refusal
(Option
(Lease or rental
agreement
(Other listing
(Life estate?
µ ºYesµ ºN*C. Are you aware of any
encroachments, bound-
ary agreements, bound-
ary disputes or recent
boundary changes?
µ ºYesµ ºN*D. Are you aware of any
rights of way, ease-
ments or licenses
(access limitations)
that may affect your
interest in the
property?
µ ºYesµ ºN*E. Are you aware of any
written agreements for
joint maintenance of
an easement or right
of way?
µ ºYesµ ºNoF. Are you aware of any
governmental study,
survey or notices that
would affect the
property?
µ ºYesµ ºNoG. Are you aware of any
pending or existing
assessments against the
property?
µ ºYesµ ºNoH. Are you aware of any
zoning violations or
nonconforming uses?
µ ºYesµ ºN*I. Are you aware of a
boundary survey for the
property?
µ ºYesµ ºN*J. Are you aware of any
covenants, conditions
or restrictions which
affect the property?
2.WATER
A. Household Water
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(The source of the
water is:
µ ºPublicµ ºCommunity
µ ºPrivateµ ºShared
Enrolled Senate Bill 446 (SB 446-A) Page 54
(Water source infor-
mation:
µ ºYesµ ºNo *a. Are you aware
of any written
agreements for
shared water
source?
µ ºYesµ ºNo *b. To your knowl-
edge, is there
an easement
(recorded or
unrecorded)
for access to
and/or main-
tenance of the
water source?
µ ºYesµ ºNo c. Are any known
problems or
repairs needed?
µ ºYesµ ºNo (Are you aware of
any water treat-
ment systems for
the property?
µ ºLeasedµ ºOwned
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
B. Irrigation
µ ºYesµ ºNo (1) Are you aware of
any water rights
for the property?
µ ºYesµ ºNo *(If there exist any,
to your knowledge,
have the water
water rights been
used during the last
five-year period?
µ ºYesµ ºNo *(If so, is the certi-
ficate available?
C. Outdoor Sprinkler
system
µ ºYesµ ºNo (To your knowledge,
is there an outdoor
sprinkler system for
the property?
µ ºYesµ ºNo (To your knowledge,
has a back flow
valve been
installed?
µ ºYesµ ºNo (To your knowledge,
is the outdoor
sprinkler system
operable?
Enrolled Senate Bill 446 (SB 446-A) Page 55
3.SEWAGE
µ ºYesµ ºNoA. To your knowledge, is
the property connected
to a sanitary sewer?
µ ºYesµ ºNoB. Are you aware of any
sanitary sewer
proposed for the
property?
µ ºYesµ ºNoC. To your knowledge, is
the property connected
to a septic system or
cesspool?
µ ºYesµ ºNoD. Are you aware of any
problems or repairs
needed?
µ ºYesµ ºNoE. To your knowledge,
does your sewage
system require on-site
pumping to another
level?
4.INSULATION
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
A. To your knowledge, is
there insulation in the:
µ ºYesµ ºNo (Ceiling?
µ ºYesµ ºNo (Exterior walls?
µ ºYesµ ºNo (Floors?
µ ºYesµ ºNoB. To your knowledge,
are there any
defective insulated
windows?
5.STRUCTURAL
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
µ ºYesµ ºN*A. To your knowledge,
has the roof leaked?
µ ºYesµ ºNo If yes, has it been
repaired?
µ ºYesµ ºNoB. Additions/conversions/
remodeling?
µ ºYesµ ºNo *If yes, are you aware
of whether a building
permit was obtained?
µ ºYesµ ºNo Was final inspection
obtained?
µ ºYesµ ºNoC. To your knowledge,
are there smoke
alarms?
µ ºYesµ ºNo If there are, which are
Enrolled Senate Bill 446 (SB 446-A) Page 56
electrical (hard-wired)?
__________
µ ºYesµ ºNoD. To your knowledge, is
there a woodstove?
Make______
µ ºYesµ ºNo Was it installed with a
permit?
µ ºYesµ ºN*E. Are you aware of
whether a pest or
dry rot, structural
or '
whole house
'
inspection has
been done?
µ ºYesµ ºN*F. Are you aware of any
moisture problems in the
structure (especially
in the basement)? If
yes, explain frequency
and extent of prob-
lem on attached sheet
µ ºYesµ ºNoG. Are you aware of a
sump pump on the
property?
6.SYSTEMS AND FIXTURES
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
If the following systems or
fixtures are included in the
purchase price, are they, to
your knowledge, in good
working order on the date
this form is signed?
µ ºYesµ ºNoA. Electrical system,
including wiring,
switches, outlets
and service
µ ºYesµ ºNoB. Plumbing system,
including pipes,
faucets, fixtures
and toilets
µ ºYesµ ºNoC. Hot water tank
µ ºYesµ ºNoD. Garbage disposal
µ ºYesµ ºNoE. Built-in range and oven
µ ºYesµ ºNoF. Built-in dishwasher
µ ºYesµ ºNoG. Sump pump
µ ºYesµ ºNoH. Heating and cooling
systems
µ ºYesµ ºNoI. Security system
µ ºOwnedµ ºLeased
7.COMMON INTEREST
µ ºYesµ ºNoA. Home Owners'
Association?
Enrolled Senate Bill 446 (SB 446-A) Page 57
Name of Association
________
Contact Person
________
Address
________
Phone Number
________
µ ºYesµ ºNoB. Regular periodic
assessments: $___
perµ º Month µ º Year
µ º Other_____
µ ºYesµ ºNoC. Are you aware of any
pending special
assessments?
µ ºYesµ ºNoD. Are you aware of any
shared '
common
areas'
or any joint
maintenance agree-
ments (facilities such
as walls, fences, pools,
tennis courts, walk-
ways or other areas
co-owned in undivided
interest with others)?
8.GENERAL
µ ºYesµ ºNoA. Are you aware of any
settling, soil, standing
water or drainage
problems on the
property or in the
immediate area?
µ ºYesµ ºNoB. To your knowledge,
does the property
contain fill?
µ ºYesµ ºNoC. Are you aware of any
material damage to the
property or any of the
structure from fire,
wind, floods, beach
movements, earthquake,
expansive soils
or landslides?
µ ºYesµ ºNoD. To your knowledge, is
the property in a
designated flood plain?
µ ºYesµ ºNoE. To your knowledge, is
the property in a
designated slide zone?
µ ºYesµ ºNoF. Are you aware of any
substances, materials
or products that may
be an environmental
hazard such as, but
not limited to,
asbestos, formaldehyde,
radon gas, lead based
Enrolled Senate Bill 446 (SB 446-A) Page 58
paint, fuel or
chemical storage
tanks, and contaminated
soil or water on the
subject property?
µ ºYesµ ºNoG. Are you aware of any
tanks or underground
storage tanks (e.g.,
septic, chemical, fuel,
etc.) on the property?
µ ºYesµ ºNoH. To your knowledge,
has the property ever
been used as an
illegal drug manu-
facturing site?
9.FULL DISCLOSURE BY
SELLERS
A. Other conditions or
defects
µ ºYesµ ºNo Are you aware of any
other material defects
affecting this prop-
erty or its value that
a prospective buyer
should know about?
B. Verification
The foregoing answers
and attached explan-
ations (if any) are
complete and correct
to the best of my/our
knowledge and I/we
have received a copy
hereof. I/we authorize
all of my/our agents
to deliver a copy of
this disclosure state-
ment to other real
estate licensees and
all prospective buyers
of the property.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
DATE ___ SELLER ________
SELLER ______________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
II. BUYER'S
ACKNOWLEDGMENT
A.As buyer(s), I/we
acknowledge the duty
to pay diligent
attention to any
Enrolled Senate Bill 446 (SB 446-A) Page 59
material defects which
are known to me/us or
can be known by me/us
by utilizing diligent
attention and observation.
B.Each buyer acknowledges
and understands that the
disclosures set forth in
this statement and in any
amendments to this
statement are made only
by the seller and are not
the representations of any
financial institution that
may have made or may
make a loan pertaining to
the property, or that may
have or take a security
interest in the property
and no such financial
institution shall be
bound by or have any
liability with respect to
any representation, mis-
representation, omission,
error or inaccuracy
contained in another
party's disclosure state-
ment required by this
section or any amendment
to the disclosure
statement.
C.Buyer (which term includes
all persons signing the
'
buyer's acceptance
'
portion of this disclosure
statement below) hereby
acknowledges receipt of
a copy of this disclosure
statement (including
attachments, if any)
bearing seller's signature.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
DISCLOSURES CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON
THE BASIS OF SELLER'S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE
TIME OF DISCLOSURE. YOU, THE BUYER, HAVE FIVE BUSINESS DAYS FROM
THE SELLER'S DELIVERY OF THIS SELLER'S DISCLOSURE STATEMENT TO
REVOKE YOUR OFFER BY DELIVERING YOUR SEPARATE SIGNED WRITTEN
STATEMENT OF REVOCATION TO THE SELLER UNLESS YOU WAIVE THIS RIGHT
AT OR PRIOR TO ENTERING INTO A SALE AGREEMENT.
BUYER HEREBY ACKNOWLEDGES RECEIPT OF A COPY OF THIS SELLER'S
DISCLOSURE STATEMENT.
DATE ____
BUYER __________
BUYER __________
Enrolled Senate Bill 446 (SB 446-A) Page 60
Agent to sign and date:
_________ Real Estate Licensee
_________ Real Estate { - Organization - } { + Business + }
*If yes, attach a copy or explain on attached sheet
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 75. ORS 279.712 is amended to read:
279.712. (1) The Oregon Department of Administrative Services
shall purchase or otherwise provide for the acquisition or
furnishing of all supplies, materials, equipment and services,
including architectural, engineering and other personal services,
required by state agencies, except to the extent the department
authorizes a state agency to purchase directly in accordance with
ORS 279.727.
(2) Subsection (1) of this section does not apply to:
(a) Purchases of alcoholic liquor by the Oregon Liquor Control
Commission;
(b) Agreements entered into by the Department of Education for
the purchase or distribution of textbooks;
(c) Personal service and public improvement contracts of the
Department of Transportation relating to maintenance or
construction of highways, bridges, parks or other transportation
facilities;
(d) Personal service and public improvement contracts of the
State Department of Fish and Wildlife for dams, fishways, ponds
and related fish and game propagation facilities;
(e) Insurance and service contracts to provide medical
assistance as provided for under ORS 414.115, 414.125, 414.135
and 414.145;
(f) Personal service and public improvement contracts of the
Economic and Community Development Department relating to its
foreign trade offices operating outside the state;
(g) Personal service contracts of the Attorney General relating
to attorney services required by law to be performed by the
Attorney General;
(h) Personal service contracts entered into by the Director of
Veterans' Affairs for real estate broker { + or principal real
estate broker + } services; and
(i) A contract of any other state agency when the agency is
specifically authorized by any provisions of law other than this
chapter to enter into the contract.
(3) The following requirements and procedures apply to personal
service contracts:
(a) Except as provided in subsection (2) of this section, the
Oregon Department of Administrative Services shall execute all
personal service contracts of state agencies, and all requisite
approvals must be obtained, including the approval of the
Attorney General, if applicable, before any state agency personal
service contract becomes binding upon the state and before any
service may be performed or payment may be made under the
contract, unless the contract is exempt from the prohibition
against services being performed before review for legal
sufficiency is obtained under ORS 291.047 (6).
Enrolled Senate Bill 446 (SB 446-A) Page 61
(b) The department shall by rule set forth the requirements
necessary to implement the provisions of this subsection,
including but not limited to rules establishing:
(A) The type of documentation that must accompany contracts
submitted to the department for procurement.
(B) A reporting system for personal service contracts. A state
agency shall submit to the department personal service contract
information as directed by the department.
(C) Procedures for the screening and selection of persons to
perform personal services when the department authorizes a state
agency to contract directly pursuant to ORS 279.051.
(D) Procedures to permit services to be performed when
circumstances exist that create substantial risk of loss, damage,
interruption of services or threat to public health or safety and
that require prompt action to protect the interests of this
state.
(c) The department may exempt certain personal service
contracts or classes of personal service contracts, in whole or
in part, from the requirements of this subsection if the
department finds that:
(A) It is unlikely that an exemption will encourage favoritism
in the awarding of a personal service contract or will
substantially diminish competition for personal service
contracts; and
(B) The awarding of a personal service contract pursuant to the
exemption will result in substantial cost savings to the state
agency.
(d) In making its findings under paragraph (c) of this
subsection, the department may consider the type, cost and amount
of the contract, number of persons available to contract and such
other factors as the department considers appropriate.
(e) Each state agency shall file with the department a copy of
each personal service contract entered into by the agency,
including appropriate documentation as required by the
department. The department shall keep the copy of the contract
and its documentation on file for three years, after which the
department may destroy the file.
(f) The department shall maintain a system for filing copies of
personal service contracts and documentation submitted to it
under paragraph (e) of this subsection.
(g) The department shall submit a biennial report to the
Legislative Assembly concerning the use of personal service
contracts by state agencies. The report shall specify the name of
each contracting agency, the amount paid under each personal
service contract entered into by the agency, the name of the
contractor, the duration of the contract and the contract's basic
purpose. The report also shall include the total dollar figure of
all personal service contracts for each year of the preceding
biennium.
(h) The department may not approve any personal service
contract before the contract has been reviewed for legal
sufficiency and approved by the Attorney General, if such review
and approval are required under ORS 291.047.
(i) Whenever a state agency pays more in a calendar year under
a personal service contract for services historically performed
by state employees than the agency would have paid to its
employees performing the same work, the agency shall so report to
the department and include in the report a statement of
justification for the greater costs.
Enrolled Senate Bill 446 (SB 446-A) Page 62
(j) The department shall notify all state agencies of the
requirements of this section.
SECTION 76. ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections shall transfer the real property known as the F. H.
Dammasch State Hospital and all improvements to the Oregon
Department of Administrative Services to be sold for the benefit
of the Mental Health and Developmental Disability Services
Division.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except as
provided in subsection (4) of this section, the Oregon Department
of Administrative Services shall sell or otherwise convey the
real property known as the F. H. Dammasch State Hospital in a
manner consistent with the provisions of this section. Conveyance
shall not include transfer to a state agency. The sale price of
the real property shall equal or exceed the fair market value of
the real property. The department shall engage the services of a
licensed real estate broker or { - real estate organization - }
{ + principal real estate broker + } to facilitate the sale of
the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property
those costs incurred by the state in selling or conveying the
real property, including costs incurred by the Department of
Corrections in transferring the real property to the Oregon
Department of Administrative Services. The remaining proceeds
from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by the
F. H. Dammasch State Hospital shall be consistent with the
Dammasch Area Transportation Efficient Land Use Plan developed by
Clackamas County, the City of Wilsonville, the Oregon Department
of Administrative Services, the Department of Land Conservation
and Development, the Department of Transportation, the State
Housing Council, the Mental Health and Developmental Disability
Services Division and the Division of State Lands.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2)
of this section not more than 10 acres. The real property
reserved from sale shall be transferred to the Mental Health and
Developmental Disability Services Division for use by the
division to develop community housing for chronically mentally
ill persons. The department and the division shall jointly
coordinate with the City of Wilsonville to identify the real
property reserved from sale under this subsection.
SECTION 77. ORS 646.382 is amended to read:
646.382. As used in ORS 646.382 to 646.396:
(1) 'Consumer' means any individual who is solicited to
purchase or who purchases the services of a credit services
organization.
(2)(a) 'Credit services organization' means any person who,
with respect to the extension of credit by others, sells,
provides, performs, or represents that the organization can or
will sell, provide or perform, in return for the payment of money
or other valuable consideration, any of the following services:
(A) Improving, saving or preserving a consumer's credit record,
history or rating.
(B) Obtaining an extension of credit for a consumer.
Enrolled Senate Bill 446 (SB 446-A) Page 63
(C) Providing advice, assistance, instruction or instructional
materials to a consumer with regard to either subparagraph (A) or
(B) of this paragraph.
(b) 'Credit services organization' does not include:
(A) Any person authorized to make loans or extensions of credit
under the laws of this state or the United States who is subject
to regulation and supervision by this state or the United States
or a lender approved by the Secretary of Housing and Urban
Development for participation in any mortgage insurance program
under the National Housing Act.
(B) Any financial institution or bank holding company as those
terms are defined in ORS 706.008 or any subsidiary or affiliate
of a financial institution or bank holding company.
(C) A mortgage banker or mortgage broker as defined in ORS
59.840.
(D) Any nonprofit organization exempt from taxation under
section 501(c)(3) of the Internal Revenue Code, provided that the
organization does not require a fee for its services and does not
receive any money or other valuable consideration prior to the
rendering of any services by the organization for the consumer.
(E) Any person licensed as a real estate broker { + or
principal real estate broker + } by this state if the person is
acting within the course and scope of that license.
(F) Any person licensed to practice law in this state if the
person renders services within the course and scope of practice
as an attorney.
(G) Any broker-dealer registered with the Securities and
Exchange Commission or the Commodity Futures Trading Commission
if the broker-dealer is acting within the course and scope of
that regulation.
(H) Any consumer reporting agency as defined in the Federal
Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
(I) Any licensee licensed under ORS chapter 725.
(3) 'Department' means the Department of Consumer and Business
Services.
(4) 'Director' means the director of the department or the
director's designees.
(5) 'Extension of credit' means the right to defer payment of
debt or to incur debt and defer its payment offered or granted
primarily for personal, family or household purposes.
SECTION 78. ORS 696.365 is amended to read:
696.365. (1) A city or county shall not impose or collect a
business license tax from a person licensed as a { - real
estate salesperson or associate - } real estate broker who
engages in professional real estate activity only as an agent of
a { + principal + } real estate broker { - or real estate
organization - } .
(2) As used in this section, 'business license tax' has the
meaning given that term in ORS 701.015.
SECTION 79. ORS 696.730 is amended to read:
696.730. Any court of competent jurisdiction, including a
justice court, has full power to hear any violation of ORS
696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855 and
696.995 { + by persons licensed under section 9 of this 2001
Act + }, and, upon finding such violation, the court may, at its
discretion and in addition to the other penalties imposed, revoke
the license of the person or persons found to have violated any
provision of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800
to 696.855 and 696.995. The clerk of the court shall forward a
Enrolled Senate Bill 446 (SB 446-A) Page 64
copy of any order revoking a real estate license to the Real
Estate Commissioner.
SECTION 80. ORS 702.005 is amended to read:
702.005. As used in ORS 702.005 to 702.063 and 702.991:
(1) 'Agent contract' means a contract or agreement pursuant to
which a person authorizes or empowers an athlete agent to
negotiate or solicit on behalf of a person with one or more
professional sports teams or organizations for the employment of
the person:
(a) By one or more professional sports teams or organizations;
or
(b) As a professional athlete.
(2)(a) 'Athlete agent' means any person or an employee or
representative of a person who:
(A) Directly or indirectly, recruits or solicits a student
athlete to enter into an agent contract, endorsement contract or
professional sports services contract; or
(B) For compensation offers, promises, attempts or negotiates
to obtain employment or procures employment for a student athlete
with a professional sports team or organization or as a
professional athlete.
(b) 'Athlete agent' does not include:
(A) A person licensed as an attorney or a dealer in securities,
financial planner, insurance agent, real estate broker,
{ + principal real estate broker, + } sales agent, tax
consultant or any other professional person when the person
offers or provides the type of services customarily provided by
that profession, except to the extent that the person acts as an
athlete agent as defined in paragraph (a) of this subsection;
(B) A person acting solely on behalf of a professional sports
team or organization; or
(C) Parents who act as athlete agents for their children.
(3) 'Educational institution' means any elementary school,
secondary school, college, university or other educational
institution.
(4) 'Endorsement contract' means a contract or agreement
pursuant to which a person is employed or receives remuneration
for any value or utility that the person may have because of
publicity, reputation, fame or following obtained because of
athletic ability or performance.
(5) 'Professional sports services contract' means any contract
or agreement pursuant to which a person is employed or agrees to
render services as a player for a professional sports team or
organization or as a professional athlete.
(6)(a) 'Student athlete' means an individual admitted to or
enrolled in an educational institution who participates, or has
informed the institution of an intention to participate, in a
sports program that includes competition with other educational
institutions. 'Student athlete' includes a student who has
entered into one or more valid agent contracts, endorsement
contracts or professional sports services contracts that allow
athlete agent representation for a specific sport, as long as
that student is eligible to participate in other sports for which
the student has no athlete agent representation.
(b) 'Student athlete' does not include:
(A) A person who has entered into a valid agent contract,
endorsement contract or professional sports services contract
that covers all sports in which the student is eligible to
participate; or
Enrolled Senate Bill 446 (SB 446-A) Page 65
(B) A student of a college or university whose eligibility to
participate in an intercollegiate sport has terminated.
SECTION 81. ORS 709.030 is amended to read:
709.030. (1) Except as provided in subsection (4) of this
section, no person other than a trust company shall transact a
trust business in this state. Except as provided in subsection
(4) of this section, before a person transacts any trust business
in this state, the person shall obtain the approval of the
Director of the Department of Consumer and Business Services if
required under ORS 709.005 and shall deposit with the director,
as security and as a pledge for the faithful conduct of its trust
business:
(a) Cash or interest-bearing securities, which securities shall
have a ready market value;
(b) A surety bond issued by a surety company authorized to
transact business in this state and in a form approved by the
director, under which the principal and surety indemnify the
several owners of the fund held in trust against loss due to the
failure of the trust company;
(c) An irrevocable letter of credit issued by an insured
institution, as defined in ORS 706.008; or
(d) Any combination of cash, letters of credit,
interest-bearing securities and surety bond.
(2) If the cash and securities held in trust amount to less
than $1,000,000, the deposit, bond, letters of credit or
combination thereof shall be $50,000. If the cash and securities
held in trust amount to $1,000,000 but do not exceed $1,500,000,
the deposit, bond, letters of credit or combination thereof shall
be $100,000. For each $500,000 or fraction thereof in excess of
$1,500,000 held in trust, the deposit, bond, or letters of credit
or combination thereof shall be increased an additional $25,000;
except a trust company shall not be required to increase the
deposit, bond, letters of credit or combination thereof to an
amount in excess of $1,000,000.
(3) The securities shall be deposited with the director and
held by the director as trustee for the beneficiaries of the
trust funds held by the trust company.
(4) A person shall not be required to be a trust company if the
person:
(a) Does not and will not regularly transact trust business in
the ordinary course of the person's business;
(b) Acts in a manner authorized by law and in the scope of
authority as an agent of a trust company;
(c) Is an attorney rendering a service customarily performed by
an attorney;
(d) Is acting as trustee under a deed of trust;
(e) Is a licensed real estate broker { + or principal real
estate broker + } rendering a service customarily performed by a
{ - real estate - } broker;
(f) Is a licensed escrow agent rendering a service customarily
performed by an escrow agent; or
(g) Is exempt from the provisions of subsection (1) of this
section by rule of the director.
SECTION 82. { + ORS 696.265 and 696.495 are added to and made
a part of ORS 696.010 to 696.490. + }
SECTION 83. { + ORS 696.710, 696.720, 696.730, 696.775 and
696.785 are added to and made a part of ORS 696.600 to
696.627. + }
SECTION 84. { + ORS 696.025, 696.050, 696.060, 696.080,
696.085, 696.100, 696.120, 696.141, 696.150, 696.160, 696.165,
Enrolled Senate Bill 446 (SB 446-A) Page 66
696.169, 696.176, 696.180, 696.210, 696.224, 696.228, 696.258,
696.355, 696.359, 696.435, 696.825 and 696.830 are repealed. + }
SECTION 85. { + (1) Sections 6 to 9, 15, 29, 30, 51, 52, 82
and 83 of this 2001 Act, the amendments to statutes by sections
10 to 14, 16 to 28, 31 to 50 and 53 to 81 of this 2001 Act and
the repeal of statutes by section 84 of this 2001 Act become
operative on July 1, 2002.
(2) Notwithstanding subsection (1) of this section, during the
period between the effective date of this 2001 Act and the
operative date of sections 6 to 9, 15, 29, 30, 51, 52, 82 and 83
of this 2001 Act, the amendments to statutes by sections 10 to
14, 16 to 28, 31 to 50 and 53 to 81 of this 2001 Act and the
repeal of statutes by section 84 of this 2001 Act, the Real
Estate Agency and the Real Estate Commissioner may take such
action as necessary to implement the provisions of this 2001 Act,
including but not limited to adopting administrative rules,
issuing temporary licenses, preparing forms, prescribing required
courses, providing for the availability of required courses and
administering examinations. + }
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Passed by Senate March 9, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House April 19, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 446 (SB 446-A) Page 67
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 446 (SB 446-A) Page 68